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Oregon Bulletin

March 1, 2011

Department of Human Services,
Seniors and People with Disabilities DivisionChapter 411

Rule
Caption: Individual Support Plan for
Individuals with Developmental Disabilities.

Adm.
Order No.: SPD 1-2011

Filed with Sec. of
State: 2-1-2011

Certified to be
Effective: 2-1-11

Notice Publication
Date:

Rules Renumbered: 309-041-1300 to 411-341-1300, 309-041-1310 to
411-341-1310, 309-041-1320 to 411-341-1320, 309-041-1330 to 411-341-1330,
309-041-1340 to 411-341-1340, 309-041-1350 to 411-341-1350, 309-041-1360 to
411-341-1360, 309-041-1370 to 411-341-1370

Subject: The Department of Human Services, Seniors and People
with Disabilities Division is renumbering the rules relating to individual
support plans for individuals with developmental disabilities in OAR chapter
309, division 041 to OAR chapter 411, division 341.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-341-1300

Statement of Purpose, Mission
Statement and Statutory Authority

(1) Purpose. These rules prescribe standards for the
development and implementation of an Individual Support Plan for individuals
with developmental disabilities.

(2) Mission statement. The overall mission of the State
of Oregon Mental Health and Developmental Disability Services Division, Office
of Developmental Disability Services, is to provide support services that will
enhance the quality of life of persons with developmental disabilities.

(a) While the service system reflects the value of
family member(s) participation in the ISP process, the Division also recognizes
the rights of adults to make informed choices about the level of participation
by family members. It is the intent of this rule to fully support the provision
of education about personal control and decision-making to individuals who are
receiving services.

(b) The ISP process is critical in determining the
individual’s and the family’s preferences for services and supports. The
preferences of the individual and family shall serve to guide the team. The
individual’s active participation and input shall be facilitated throughout the
planning process.

(c) The ISP process is designed to identify the types
of services and supports necessary to achieve the individual’s and family’s
preferences, identify the barriers to providing those preferred services and
develop strategies for reducing the barriers.

(d) The ISP process should also identify strategies to
assist the individual in the exercise of his or her rights. This may create
tensions between the freedom of choice and interventions necessary to protect
the individual from harm. The ISP team must carefully nurture the individual’s
exercise of rights while being equally sensitive to protecting the individual’s
health and safety.

(e) The ISP team assigns responsibility for obtaining
or providing services to meet those needs.

(3) Statutory authority. These rules are authorized by
ORS 430.041 and carry out the provisions of 430.610 to 430.670 and 427.005 to
427.007.

(1) “Abuse investigation and protective services” means
an investigation as required by OAR 309-040-0240 and any subsequent services or
supports necessary to prevent further abuse.

(2) “Abuse of an Adult” means:

(a) Any death caused by other than accidental or
natural means, or occurring in unusual circumstances;

(b) Any physical injury caused by other than accidental
means, or that appears to be at variance with the explanation given of the
injury;

(c) Willful infliction of physical pain or injury;

(d) Sexual harassment or exploitation including, but
not limited to, any sexual contact between an employee of a community facility
or community program, or service provider or other staff and the adult. Sexual
exploitation also includes failure of staff to discourage sexual advances
towards staff by adults served. For situations other than those involving an
employee, service provider, or other staff and an adult, sexual harassment or
exploitation means unwelcome verbal or physical sexual contact including
requests for sexual favors and other verbal or physical behavior directed
toward the adult;

(e) Failure to act/neglect that leads to or is in
imminent danger of causing physical injury, through negligent omission,
treatment, or maltreatment of an adult, including but not limited to the
failure of a service provider or staff to provide an adult with adequate food,
clothing, shelter, medical care, supervision, or through condoning or permitting
abuse of an adult by any other person. However, no person shall be deemed
neglected or abused for the sole reason that he or she voluntarily relies on
treatment through prayer alone in lieu of medical treatment;

(f) Verbal mistreatment by subjecting an adult to the
use of derogatory names, phrases, profanity, ridicule, harassment, coercion or
intimidation and threatening injury or withholding of services or supports.
However, it is not considered verbal mistreatment in situations where the
consequences of non-compliance may result in termination of services if agreed
upon by the ISP team, including implied or direct threat of termination of
services;

(g) Placing restrictions on an individual’s freedom of
movement by seclusion in a locked room under any condition, restriction to an
area of the residence or from access to ordinarily accessible areas of the
residence, unless arranged for and agreed to on the Individual’s Support Plan;

(h) Using restraints without written physician’s order,
or unless an individual’s actions present an imminent danger to himself/herself
or others and in such circumstances only until other appropriate action is
taken by medical, emergency or police personnel or unless arranged for and
agreed to on the ISP;

(i) Financial exploitation which may include, but is
not limited to, unauthorized rate increases, staff borrowing from or loaning
money to individuals, witnessing wills in which the program is beneficiary,
adding program’s name to individual’s bank accounts or other personal property
without approval of the individual, his/her legal guardian, and the ISP team;
and

(j) Inappropriately expending the individual’s personal
funds, theft of an individual’s personal funds, using an individual’s personal
funds for staff’s own benefit, commingling the individual’s funds with program
and/or other individuals’ funds, or the program becoming guardian or
conservator.

(3) “Adult” means an individual 18 years or older with
developmental disabilities for whom services are planned and provided.

(4) “Advocate” means a person other than paid staff who
has been selected by the individual or by the individual’s legal representative
to help the individual understand and make choices in matters relating to
identification of needs and choices of services, especially when rights are at
risk or have been violated.

(5) “Annual ISP Meeting” means an annual meeting which
is attended by the individual served, agency representatives who provide
service to the individual, case manager, the guardian, if any, relatives of the
individual and/or other persons, such as an advocate, as appropriate. The
purpose of the meeting is to determine needs, coordinate services and training,
and develop an Individual Support Plan.

(6) “Case Management” means an organized service to assist
individuals to select, obtain and utilize resources and services.

(7) “Case Manager” means an employee of the community
mental health program or other agency which contracts with the County or
Division, who is selected to plan, procure, coordinate, and monitor individual
support plan services and to act as a proponent for persons with developmental
disabilities.

(8) “Choice” means the individual’s expression of
preferences of activities and services through verbal, sign language or other
communication method.

(9) “Community Mental Health Program” or “CMHP” means
the organization of all services for individuals with mental or emotional
disturbances, developmental disabilities, or chemical dependency, operated by,
or contractually affiliated with, a local mental health authority, operated in
a specific geographic area of the state under an intergovernmental agreement or
direct contract with the Mental Health and Developmental Disability Services
Division.

(10) “Crisis Services” means case management services
provided in response to any event that substantially threatens the individual’s
health, safety or the stability of his/her support system.

(11) “Developmental Disability (DD)” means a disability
attributable to mental retardation, autism, cerebral palsy, epilepsy, or other
neurological handicapping condition which requires training or support similar
to that required by individuals with mental retardation, and the disability:

(a) Originates before the individual attains the age of
22 years, except that in the case of mental retardation the condition must be
manifested before the age of 18; and

(b) Has continued, or can be expected to continue,
indefinitely; and

(c) Constitutes a substantial handicap to the ability
of the person to function in society; or

(d) Results in significant sub-average general
intellectual functioning with concurrent deficits in adaptive behavior which
are manifested during the developmental period. Individuals of borderline
intelligence may be considered to have mental retardation if there is also
serious impairment of adaptive behavior. Definitions and classifications shall
be consistent with the “Manual of Terminology and Classification in Mental
Retardation” by the American Association on Mental Deficiency, 1977 Revision.
Mental retardation is synonymous with mental deficiency.

(12) “Developmental Disability Program Manager” means
an employee of the community mental health program, or other agency which
contracts with the county or Division, who is responsible for DD programs within
the county.

(15) “Exit” means either termination or transfer from
one Division-funded program to another. Exit from a program does not include
transfer within a service provider’s program.

(16) “Generic Services” means community resources that
are provided to the citizenry at large.

(17) “Incident Report” means a written report of any
injury, accident, act of physical aggression or unusual incident involving an
individual.

(18) “Independence” is defined as the extent to which
persons with mental retardation or developmental disabilities, with or without
staff assistance, exert control and choice over their own lives.

(19) “Individual” means a person with developmental
disabilities for whom services are planned and provided.

(20) “Individual Support Plan” or “ISP” means a written
plan of support and training services for an individual covering a 12-month
period which addresses an individual’s support needs and each service
provider’s program plan.

(21) “Individual Support Plan Team” or “ISP Team” means
a team composed of the individual, representatives of all current service
providers, case manager, the individual’s legal guardian if any, advocate, and
others determined appropriate by the individual receiving services. If the
individual is unable or does not express a preference, other appropriate team
membership shall be determined by the ISP team members.

(22) “Integration” means the use by persons with mental
retardation or other developmental disabilities of the same community resources
that are used by and available to other persons in the community and
participation in the same community activities in which persons without a
disability participate, together with regular contact with persons without a
disability.

(23) “Legal Representative” means the parent if the
individual is under age 18, unless the court appoints another individual or
agency to act as guardian. For those individuals over the age of 18, a legal
representative means an attorney at law who has been retained by or for the
adult, or a person who is authorized by a court to make decisions about
services for the individual.

(24) “Local Mental Health Authority” or “LMHA” means
the county court or board of county commissioners of one or more counties who
chose to operate a CMHP; or, if the county declines to operate or contract for
all or part of a CMHP, the board of directors of a public or private corporation
which contracts with MHDDSD to operate a CMHP for that county.

(25) “Monitoring” means the periodic review of the
implementation of services identified in the ISP and the quality of services
delivered by other organizations.

(b) The individual exhibits behavior that poses a
significant danger to the individual. Examples include but are not limited to:

(A) Acts or history of acts which have caused injury to
self or others requiring medical attention;

(B) Use of fire or items to threaten injury to persons
or damage to property;

(C) Acts that cause significant damage to homes,
vehicles, or other property;

(D) Actively searching for opportunities to act out
thoughts that involve harm to others.

(c) The ISP team determines that implementation of the
Individual’s Support Plan developed to address conditions such as those
described in (a) or (b) above shall be monitored monthly by the case manager to
assure protection of the individual’s health and safety. If monthly monitoring
by the case manager is not necessary, an individual is not considered part of
the priority population.

(28) “Productivity” means engagement in
income-producing work by a person with mental retardation or other
developmental disabilities which is measured through improvements in income
level, employment status or job advancement or engagement by a person with
mental retardation or other developmental disabilities in work contributing to
a household or community.

(29) “Service Provider” means a public or private
community agency or organization that provides a recognized mental health or
developmental disability services services and is approved by the Division or
other appropriate agency to provide the service.

(30) “Support” means those services that assist an
individual in maintaining or increasing his or her functional independence,
achieving community presence and participation, enhancing productivity, and
enjoying a satisfying lifestyle. Support services can include training, i.e.
the systematic, planned maintenance, development and enhancement of self-care,
social or independent living skills; or the planned sequence of systematic
interactions, activities, structured learning situations, or educational
experiences designed to meet each individual’s specified needs in the areas of
integration and independence.

(31) “Transfer” means movement of an individual from
one site to another site administered by the same service provider.

(32) “Transition Plan” means a written plan for the
period of time between an individual’s entry into a particular service and the
time when the individual’s ISP is developed and approved by the ISP team. The
plan shall include a summary of the services necessary to facilitate adjustment
to the services offered, the supports necessary to ensure health and safety,
and the assessments and/or consultations necessary for the ISP development.

(33) “Unusual Incident” means those incidents involving
serious illness or accidents, death of an individual, injury or illness of an
individual requiring inpatient or emergency hospitalization, suicide attempts,
a fire requiring the services of a fire department, or any incident requiring
an abuse investigation.

Community Mental Health Program
Responsibilities for Individual Support Plan, Entry/Exit/Transfer Plans

(1) Individuals in Division-funded residential and/or
employment services. The CMHP shall assure that all individuals in
Division-funded residential and/or employment services have an annual
Individual Support Plan (ISP). An Individual Support Plan shall be developed
and reviewed in accordance with OAR 309-041-1330 and 309-041-1360. The case
manager shall participate in the development of an Individual Support Plan for
individuals who fall within the priority population. The case manager shall, to
the extent resources are available and within the priorities established in
309-041-0400 through 309-041-0500, Case Management Services for Individuals
with Developmental Disabilities and Their Families, participate in the
development of Individual Support Plans for other individuals.

(2) Individuals not in Division-funded residential or
employment services. Individuals not in Division-funded residential or
employment services are not required to have an ISP. These individuals shall
have an Annual Contact and Summary of Support Needs developed and reviewed in
accordance with OAR 309-041-0410, Case Management Services for Individuals with
Developmental Disabilities and Their Families.

(a) Services identified in the ISP shall be monitored
for individuals receiving Division-funded residential and/or employment
services in accordance with OAR 309-041-0445, Case Management Services for
Individuals with Developmental Disabilities and Their Families.

(b) The case manager shall monitor the ISP for individuals
who fall within the priority population. The case manager shall, to the extent
resources are available and within the priorities established in the Case
Management Rule, monitor the ISP for other individuals.

(1) Priority population determination. The ISP team
shall make an initial determination whether or not an individual falls within
the priority population using the definition in OAR 309-041-0130 and notify the
case manager. The case manager shall confirm that the individual falls within
the priority population.

(2) ISP team membership. The ISP shall be developed
through a team approach and the membership of the team may vary, depending on
the unique needs of the individual and the services being provided. Each member
shall have equal participation in discussion and decision making. No one member
shall have the authority to make decisions for the team. Representatives from
service provider(s), families, the CMHP, or advocacy agencies shall be
considered as one member for the purpose of reaching majority agreement.

(a) The ISP team shall at a minimum, include the
individual, individual’s legal guardian, and service provider representatives.
The case manager shall be part of the ISP team for individuals who fall within
the priority population. The case manager may participate in the ISP meeting
for other individuals to the extent case management resources are available and
within the priorities set forth for case management services in OAR
309-041-0410, Case Management Services for Individuals with Developmental
Disabilities and Their Families.

(b) The individual may suggest additional participants.
Typically, family members, advocates or other professionals involved in
providing service to the individual are appropriate ISP team members.

(c) The individual may raise objection to participation
by a particular person. When an individual raises objections to participation
by a particular individual, the team shall attempt to accommodate the
individual’s objection while allowing participation by team members.

(3) Initial and annual ISP timelines.

(a) An ISP shall be completed within 60 calendar days
following entry into Division-funded residential or employment services and at
least annually thereafter. All ISPs shall be sent to the CMHP for placement in
the individual’s file. If the individual has not been identified as a member of
the priority population and a case manager believes otherwise, the case manager
may reconvene the ISP team. If the case manager does not believe the ISP meets the
requirements specified in these rules, the case manager may reconvene the ISP
team.

(b) When a service provider’s individual planning
process (including the outcome system) requires more than annual team meetings,
a copy of the plan shall be sent to the CMHP within 30 days of completion for
placement in the individual’s file. The case manager shall review the plan and
provide any comments to the ISP team.

(4) Changes in the ISP. If significant needs or changes
or crisis situations arise between scheduled ISP meetings, such as the
necessity to develop a new behavior intervention program, reports indicating
changes in the health status or functioning level, new evaluations containing
substantial recommendations or changes, the report of an unusual incident or
any other significant situation which may require prompt action, the case
manager or ISP team leader shall be contacted to facilitate a discussion
between the ISP team members regarding the ISP changes proposed and assess the
need to reconvene as a team. Any ISP team member may contact the case manager
regarding changes in the ISP. The case manager or facilitator shall document
the team discussion and any subsequent recommendations and distribute to these
team members.

(1) ISP Meetings. The case manager shall initiate the
ISP meeting for individuals who fall within the priority population. For other
individuals, when the case manager is not present, the ISP team shall select a
team leader for the meeting. The team leader shall be responsible for assuring
that the ISP meeting is scheduled and participants notified.

(2) Case manager or team leader role in the development
of the ISP. At the ISP meeting, the case manager or designated team leader
shall:

(a) Initiate the discussion of the individual,
individual’s legal representative’s, family’s, or other team member’s
preferences;

(b) Initiate a discussion that the individual and/or
legal representative have the right to request that information not be shared
across service providers unless the preference is likely to create the situation
detrimental to the individual’s health and safety as determined by the ISP
team.

(c) Initiate discussion of and document the need for
evaluations in the areas of medical, dental, vision, hearing; and any other
evaluations based on the specialized needs of the individual (such as, but not
limited to, neurological evaluations for individuals with seizure disorders,
augmentative communication evaluations for individuals with limited speech,
physical therapy and equipment evaluations for individuals in wheelchairs,
psychiatric or psychological evaluations for individuals who are
dually-diagnosed or nutritional evaluations for individuals with metabolic
disorders);

(d) Initiate and document discussion of specialized
health care needs and health maintenance services (such as, but not limited to,
required periodic lab work), including what services are needed and the
individual or provider who is responsible for assuring that they are provided;

(e) Determine with the ISP team whether home visits,
vacations and other community or family-based activities are considered to be
community-based experiences preferred by the individual. If so, then these
activities must be considered part of the individual’s overall ISP and shall be
documented as such through the ISP process;

(f) Initiate the review of and discussion regarding
outcome of any previous plan;

(g) Initiate discussion of proposed service provider
plans and assist the team to make any needed modifications emphasizing health,
safety, and rights;

(h) Determine the extent to which the ISP reflects the
individual’s choice and preferences in his/her daily activities which are
defined in the ISP;

(i) Make efforts to build consensus among the members
regarding services and supports included in the ISP, giving the most weight to
the preference of the individual receiving services, unless the individual’s
preference is likely to create a situation detrimental to his/her health and
safety as determined by the ISP team;

(j) ISP team decisions shall be made by majority
agreement.

(3) ISP document. The ISP document shall include:

(a) Each service provider’s program plan, with team
modifications;

(b) Documentation of the need for additional
evaluations or other services to be obtained and the person or provider
responsible for assuring that these evaluations or services are obtained;

(c) Documentation of the specialized health care needs,
health maintenance services and the person or provider responsible for assuring
that these services are provided;

(d) Documentation of the individual’s safety skills
including the level of support necessary for the individual to evacuate a
building (when warned by a signal device), the individual’s ability to adjust
water temperature, and the amount of time an individual can be without
supervision before the missing notification protocol is implemented;

(e) Documentation of the reason(s) any preferences of
the individual, legal representative and/or family members cannot be honored;
and

(f) Documentation of the role and responsibilities of
each participant in implementing the ISP plan, with specific ISP team member
concerns, if any, noted.

(4) Distribution of the ISP document. The case manager
or the team leader shall assure the distribution of a copy of the Individual
Support Plan to all ISP team members within 30 calendar days of the ISP team
meeting.

(1) Entry staffing. Prior to an individual’s date of
entry into a Division-funded program, the ISP team shall meet to review
referral material in order to determine appropriateness of placement. For
purposes for entry staffings, a case manager must attend the staffing and
authorize the placement. The team shall determine date of entry and develop a
transition plan. The transition plan shall include:

(a) The name of the individual considered for entry;

(b) The date of the meeting;

(c) Documentation of the participants included in the
meeting;

(d) Documentation of the circumstances leading to the
proposed entry;

(e) Documentation of the alternatives considered
instead of entry;

(f) Documentation of the reason(s) any preferences of
the individual, the individual’s legal representative, family or other team
member cannot be honored;

(g) Documentation of majority agreement of the
participants in the meeting with the decision;

(h) The written plan for services to the individual;

(i) Documentation of decisions regarding the proposed
placement; and

(j) Findings of the ISP team and the signatures of all
participants.

(2) Crisis services. For a period not to exceed 30
days, subsection (3)(b) of OAR 309-041-0445 does not apply if an individual is
temporarily admitted to a program for crisis services.

(3) Exit from Division-funded programs. All exits from
Division-funded programs shall be authorized by the CMHP. Prior to an
individual’s exit date, the ISP team shall meet to review the appropriateness
of the move and to coordinate any services necessary during or following the
transition. For purposes for exit staffings, a case manager must attend the
staffing and authorize the exit.

(4) Exit staffing. Findings of the exit meeting shall
be distributed to all ISP team members. The exit plan shall include:

(a) The name of the individual considered for exit;

(b) The date of the meeting;

(c) Documentation of the participants included in the
meeting;

(d) Documentation of the circumstances leading to the
proposed exit;

(e) Documentation of the alternatives considered
instead of exit;

(f) Documentation of the reason(s) any preferences of
the individual, the individual’s legal representative, family or other team
member cannot be honored;

(g) Documentation of majority agreement of the
participants in the meeting with the decision; and

(h) The written plan for services to the individual.

(5) Transfer meeting. All transfers must be authorized
by the CMHP. Transfer of an individual shall be preceded by a meeting of the
ISP team before any decision to transfer is made. This meeting may occur by
phone with all ISP team participants to expedite the transfer if so warranted.
Findings of such a meeting shall be recorded in the individual’s file and
include, at a minimum:

(a) The name of the individual considered for transfer;

(b) The date of the meeting;

(c) Documentation of the participants included in the
meeting;

(d) Documentation of the circumstances leading to the
proposed transfer;

(e) Documentation of the alternatives considered
instead of transfer;

(f) Documentation of the reason(s) any preferences of
the individual, individual’s legal representative and/or family members cannot
be honored;

(g) Documentation of majority agreement of the
participants with the decision; and

(1) Case manager responsibility for monitoring services
for individuals. The case manager shall determine whether services are being
provided in accordance with the ISP; that personal, civil, and legal rights of
the individual are protected in accordance with this rule; that the
satisfaction and desires of the individual, the individual’s legal
representative or family are addressed; that the services provided continue to
meet the needs of the individual; and that the services result in the
individual’s achievement of goals and objectives identified in the ISP. The
case manager shall monitor the ISP for individuals who fall within the priority
population. The case manager shall, to the extent resources are available,
monitor the ISP of other individuals.

(2) Frequency of monitoring. The frequency of the
monitoring will be determined by the needs of the individual. However, the case
manager shall meet at least monthly, in addition to the annual ISP meeting,
with an individual who falls within the priority population. Arrangements shall
be made to meet with the individual in a mutually acceptable location.
Communication for the purpose of monitoring may also be done with provider(s)
and family members. Should an individual refuse, after being duly informed as
to the purpose and nature of the visit, to have the case manager visit, then
such a refusal shall be documented in the individual’s case record.

(3) Purpose of monitoring. The purpose of the visit is
to assure that supports are being provided as defined in the ISP. Monitoring
shall include:

(a) Review and documentation of the individual’s
outcome data, if applicable.

(b) Review of any incident and unusual incident
reports.

(c) Review of the process by which an individual
accesses and utilizes funds according to standards specified in OAR
309-049-0175.

(d) Review of the ISP document to determine if the
goals and objectives or actions to be taken by the case manager or others have
been implemented:

(B) Address the anticipated outcomes which reflect the
preferences and needs of the individual to the extent possible, while at the
same time reflect similar interests and activities of persons without
disabilities of a similar age; and

(C) Define the behavior, conditions and criterion for
achieving the objectives and are consistent with the residential or employment
outcome system as set forth in the Interagency Agreement between the Division
and the CMHP.

(4) Monitoring follow-up. If the case manager
determines that services are not being delivered as agreed, or that an individual’s
service needs have changed since the last review, the CMHP shall determine the
need for technical assistance and/or referral to the DD program manager for
consultation or corrective action.

(a) Mediation of grievances. Individuals, their legal
representatives, family members or advocates may file a grievance concerning a
determination regarding the appropriateness of services proposed or provided as
set forth in these rules.

(b) Grievances shall be submitted in writing to the
CMHP. The CMHP upon request shall assist individuals requiring assistance in
preparing a written grievance.

(c) Informal procedures. Grievances concerning the
appropriateness of services should, if possible, be resolved through the use of
informal procedures. However, the grievant may elect not to utilize informal
procedures, and to proceed directly to the county formal mediation committee.

(vi) Voluntary mediation with a neutral mediator
mutually agreed upon by the parties.

(B) Informal procedures shall result in a decision on
the grievance no later than 30 days from the date the grievance is filed.

(C) The 30 day period for informal resolution of
grievances may be extended by mutual agreement of the grievant and the CMHP to
extend the informal process. Such agreement shall be in writing and must extend
the process for a specified duration. A copy of the agreement to extend the
time for informal resolution shall be sent to the CMHP and the Division within
five working days of its signing by the parties involved.

(D) The grievant shall receive written notice of the
grievance decision or outcome. The CMHP shall send a copy of this notice to the
Division within five working days of issuance of notice to the grievant.

(d) CMHP formal mediation. When informal procedures
cannot resolve the dispute, the interested party(ies) may submit to the CMHP a
written request for a formal mediation of the disagreement using the CMHP’s
mediation procedures. The CMHP Director or designee shall make a decision
within 30 working days of receipt of the request and notify the appellant of
the decision in writing.

(e) Division review process. If the CMHP formal
mediation decision is not acceptable to all the parties, decisions can be
reviewed using the following formal procedure:

(A) The party requesting review shall submit in writing
a request for a formal review to the Mental Health and Developmental Disability
Services Division within five working days of receipt of the CMHP’s decision:

(i) A grievance review committee shall be appointed by
the Administrator of the Division or designee, in the Office of Developmental
Disability Services of the Division, every two years, and shall be composed of
Division representative, a local service provider program representative, a
case management representative, and a representative of the Division’s Office
of Client Rights;

(ii) In case of a conflict of interest, as determined
by the Administrator or designee, alternative representatives will temporarily
be appointed to the committee by the Administrator or designee.

(B) Upon receipt of the request for formal review, the
Division shall:

(i) Schedule a grievance committee review meeting
within 30 days of written request by the requesting party for a formal review
of the decision; and

(ii) Notify in writing, each party involved in the
disagreement of the date, time, and location of the committee review meeting,
allowing at least 15 days from the meeting notification to the scheduled
meeting time; and

(i) The opportunity to review documents and other
evidence relied upon in reaching the decision being appealed; and

(ii) The opportunity to be heard in person and to be
represented; and

(iii) The opportunity to present witnesses or documents
to support their position and to question witnesses presented by other parties.

(D) Within 15 days after the conclusion of the meeting,
the grievance review committee shall provide written recommendations to the
Administrator or designee. The Administrator or designee shall make a decision
and send written notification of the recommendations and implementation process
to all grievance review committee meeting participants within 15 days of
receipt of the recommendations.

(E) The decision of the Administrator or designee shall
be final.

(2) Appeals.

(a) Appeals of entry, exit or transfer decisions within
residential services may only be initiated according to the “24-Hour
Residential Services” (OAR 309-049-0030), and the “Supported Living Services”
(309-041-0550) and “Semi-Independent Living Services” (309-041-0015) rules;

(b) Appeals of entry, exit or transfer decisions within
employment services may only be initiated according to the “Employment and
Alternatives to Employment Services” (OAR 309-047-0000) rule.

Subject: The Department of Human Services, Seniors and People
with Disabilities Division is renumbering the residential program rules in OAR
chapter 309, division 049 to OAR chapter 411, division 349.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-349-0000

Purpose and Statutory Authority

(1) Purpose. These rules require providers of
residential services to persons under 21 years of age with developmental
disabilities to notify the public school system prior to establishing,
expanding, or changing the program.

(2) Statutory Authority. These rules are authorized by
ORS 430.041 and carry out the provisions of ORS 339.175.

(1) “Developmental Disability (DD)” means a person with
a disability which is attributed to mental retardation, cerebral palsy,
epilepsy or other neurological handicapping condition which requires training
similar to that required by persons with mental retardation. Characteristics of
the developmental disability are that it:

(a) Originates before the person attains the age of 22
years, except that in case of mental retardation the condition must be
manifested before the age of 18;

(b) Has continued, or can be expected to continue
indefinitely;

(c) Constitutes a substantial handicap to the person’s
ability to function in society; and

(d) In the case of mental retardation, means a person
with significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested during the developmental
period. Persons of borderline intelligence may be considered to have mental
retardation if there is also serious impairment of adaptive behavior.
Definitions and classifications shall be consistent with the “Manual on
Terminology and Classification in Mental Retardation” of the American
Association on Mental Deficiency, 1977 Revision. Mental retardation is
synonymous with mental deficiency. For community case management purposes,
mental retardation includes those persons of borderline intelligence who have a
history of residence in a state training center:

(A) “Adaptive Behavior” means the effectiveness or
degree with which an individual meets the standards of personal independence
and social responsibility expected for age and cultural group;

(B) “Developmental Period” means the period of time
between birth and the 18th birthday;

(C) “Intellectual Functioning” means functioning as
assessed by one or more of the individually administered general intelligence
tests developed for that purpose;

(D) “Significantly Subaverage” means a score on a test
of intellectual functioning that is two or more standard deviations below the
mean for the test.

(3) “DD Residential Program” means DD residential homes
and DD small residential homes serving residents with developmental disabilities
who are under the age of 21. This rule does not apply to DD foster homes.

(4) “Resident” means a person served by and residing in
a DD residential program.

(5) “Superintendent” means the highest ranking
administrative officer in a school district or an educational institution, or
in the absence of the superintendent, the person designated to fulfill the
functions.

The Administrator or Board of Directors of any DD
residential program intending to establish or expand services to persons under
the age of 21, or intending to change the category of residents being served,
shall provide written notification to the superintendent of any affected local
school district. To assist local school districts in planning special education
services for additional or different students with developmental disabilities,
the written notification shall include information about the characteristics
and needs of residents including but not limited to:

(1) The written notification required by this rule
shall occur not less than three months prior to events described in OAR
309-049-0010.

(2) The three-month period, or any part of it, may be
waived by agreement of the DD residential program and the affected school
district.

(3) Copies of the written notification shall be
forwarded to the Director of the Community Mental Health Program, the Associate
Superintendent of Special Education at the Oregon Department of Education, and
to the Assistant Administrator of the Oregon Mental Health and Developmental
Disability Services Division for DD Programs.

Rules Renumbered: 410-050-0401 to 411-069-0000, 410-050-0411 to
411-069-0010, 410-050-0421 to 411-069-0020, 410-050-0431 to 411-069-0030,
410-050-0451 to 411-069-0040, 410-050-0461 to 411-069-0050, 410-050-0471 to
411-069-0060, 410-050-0481 to 411-069-0070, 410-050-0491 to 411-069-0080,
410-050-0501 to 411-069-0090, 410-050-0511 to 411-069-0100, 410-050-0521 to
411-069-0110, 410-050-0531 to 411-069-0120, 410-050-0541 to 411-069-0130,
410-050-0551 to 411-069-0140, 410-050-0561 to 411-069-0150, 410-050-0591 to
411-069-0160, 410-050-0601 to 411-069-0170

Subject: The Department of Human Services, Seniors and People
with Disabilities Division is renumbering the long term care tax rules to move
them from OAR chapter 410, division 050 to OAR chapter 411, division 069.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-069-0000

Definitions

The following definitions apply to OAR 410-050-0401
through 410-050-0601:

(1) “Assessment Rate” means the rate established by the
Director of the Department of Human Services.

(2) “Assessment Year” means a 12-month period,
beginning July 1 and ending the following June 30, for which the assessment
rate being determined is to apply.

(3) “Deficiency” means the amount by which the tax as
correctly computed exceeds the tax, if any, reported by the facility. If, after
the original deficiency has been assessed, subsequent information shows the
correct amount of tax to be greater than previously determined, an additional
deficiency arises.

(4) “Delinquency” means the facility failed to pay the
tax as correctly computed when the tax was due.

(5) “Department” means the Department of Human
Services.

(6) “Director” means the Director of the Department of
Human Services.

(7) “Gross Revenue” means the revenue paid to a long
term care facility for patient care, room, board, and services, less
contractual adjustments. It does not include:

(a) Revenue derived from sources other than long term
care facility operations, including but not limited to donations, interest,
guest meals, or any other revenue not attributable to patient care; and

(b) Hospital revenue derived from hospital operations.

(8) “Long Term Care Facility” means a facility with
permanent facilities that includes inpatient beds and provides medical
services, including nursing services but excluding surgical procedures except
as may be permitted by the rules of the Director. A long term care facility
provides treatment for two or more unrelated patients and includes licensed
skilled nursing facilities and licensed intermediate care facilities, but does
not include facilities licensed and operated pursuant to ORS 443.400 to
443.455. A long term care facility does not include any intermediate care
facility for the mentally retarded.

(10) “Patient Days” means the total number of patients
occupying beds in a long term care facility for all days in the calendar period
for which an assessment is being reported and paid. For purposes of this
subsection, if a long term care facility patient is admitted and discharged on
the same day, the patient shall be deemed to occupy a bed for one day.

(11) “Waivered Long Term Care Facility” means:

(a) A long term care facility operated by a Continuing
Care Retirement Community (CCRC) that is registered under ORS 101.030 and that
admits:

(A) Residents of the CCRC; or

(B) Residents of the CCRC and nonresidents; or

(b) A long term care facility that is annually
identified by the Department as having a Medicaid recipient census that exceeds
the census level established by the Department for the year for which the
facility is identified.

(1) Except as otherwise provided by law, the Department
must not publicly divulge or disclose the amount of income, expense, or other
particulars set forth or disclosed in any report or return required in the
administration of the taxes. Particulars include but are not limited to social
security numbers, employer numbers, or other facility identification numbers,
and any business records required to be submitted to or inspected by the
Department or its designee to allow it to determine the amounts of any
assessments, delinquencies, deficiencies, penalties, or interest payable or
paid, or otherwise administer, enforce, or collect a health care assessment to
the extent that such information would be exempt from disclosure under ORS
192.501(5).

(2) The Department may:

(a) Furnish any facility, or its authorized
representative, upon request of the facility or representative, with a copy of
the facility’s report filed with the Department for any quarter, or with a copy
of any report filed by the facility in connection with the report, or with a
copy with any other information the Department considers necessary;

(b) Publish information or statistics so classified as
to prevent the identification of income or any particulars contained in any
report or return; and

(c) Disclose and give access to an officer or employee
of the Department or its designee, or to the authorized representatives of the
U.S. Department of Health and Human Services, Centers for Medicare and Medicaid
Services (CMS), the Controller General of the United States, the Oregon
Secretary of State, the Oregon Department of Justice, the Oregon Department of
Justice Medicaid Fraud Control Unit, and other employees of the state or
federal government to the extent the Department deems disclosure or access
necessary or appropriate for the performance of official duties in the
Department’s administration, enforcement, or collection of these taxes.

(1) Each long term care facility in Oregon is subject
to the long term care facility tax except the Oregon Veterans’ Home and long
term care facilities that have received written notice from the Department that
they are exempt under the terms of a waiver. For these facilities, the
exemption from the long term care facility tax only applies for the specific
period of time described in the notice from the Department.

(2) The Director will determine on or before April 1 of
each year those long term care facilities that meet the criteria of a waivered
long term care facility as defined by OAR 410-050-0401 that are exempt from the
long term care facility tax for the assessment year commencing July 1 of that
year.

(3) A long term care facility that believes it meets
the criteria of a waivered long term care facility that has not received notice
of exempt status or disagrees with the Department’s decision, may request an
administrative review from the Department.

(a) A request for an administrative review must be sent
to: Administrator DHS Finance and Policy Analysis 500 Summer Street NE Salem,
OR 97301

(b) A request for administrative review must be
received by the Department by April 15 prior to the assessment year.

(1) The tax is assessed upon each patient day,
including Medicaid patient day, at a long term care facility. The amount of the
tax equals the assessment rate times the number of patient days, including
Medicaid patient days, at the long term care facility for the calendar quarter.
The current rate of the assessment will be determined in accordance with these
rules.

(2) The facility must pay the tax and file the report
on a form approved by the Department on or before the last day of the month
following the end of the calendar quarter for which the tax is being reported,
unless the Department permits a later payment date. If a facility requests an
extension, the Department, in its sole discretion, will determine whether to
grant an extension.

(3) Each long term care facility must submit a revenue
report on a form prescribed by the Department by September 30 of each year and
pay any tax amount due. Long term care facilities with a Medicaid contract with
the Department that provide more than 1,000 Medicaid patient days must submit
the nursing facility financial statement (cost report) annually as required by
OAR 411-070-0300 which contains the revenue report. Long term care facilities
that are not required to submit the annual cost report must submit the revenue
report. Either a revenue report or a nursing facility financial statement,
where applicable, must be filed by September 30 of each year regardless of
whether any additional tax is owed as a result of that filing.

(4) A one-month extension may be obtained for the
nursing facility financial statement as set forth in OAR 411-070-0300. A
one-month extension may be obtained for the revenue report if a written request
to the Department for an extension is postmarked prior to September 30. The
Department will respond in writing to these requests.

(5) Revenue reports submitted late are subject to
penalty as set forth in OAR 410-050-0491. Nursing facility financial statements
submitted late are subject to a penalty as set forth in OAR 411-070-0300(2)(c),
where applicable.

(6) Any tax amount due based on the cost report or
revenue report as a reconciliation of the previously filed quarterly reports
must be paid by the due date specified. Payments submitted late are subject to
penalty as set forth in OAR 410-050-0491.

(7) Any refund due to the provider based on the cost
report or revenue report can be requested in writing with the submission of the
report.

(8) Any report, statement, or other document required
to be filed under any provision of these rules shall be certified by the chief
financial officer of the facility or an individual with delegated authority to
sign for the facility’s chief financial officer. The certification must attest,
based on best knowledge, information, and belief, to the accuracy,
completeness, and truthfulness of the document.

(9) Payments may be made electronically and the accompanying
report may either be faxed to the Department at the fax number provided on the
report form or mailed to the Department at the address provided on the report
form.

(10) The Department may charge the facility a fee of
$100 if, for any reason, the check, draft, order, or electronic funds transfer
request is dishonored. This charge is in addition to any penalty for nonpayment
of the taxes that may also be due.

(1) Claims for refunds or payments for additional tax
must be submitted by the facility on a form approved by the Department. The
facility must provide all information required on the report. The Department
may audit the facility, request additional information, or request an informal
conference prior to granting a refund or as part of its review of a payment of
a deficiency.

(2) Claim for refund.

(a) If the amount of the tax due is less than the
amount paid by the facility and the facility does not then owe a tax for any
other calendar period, the overpayment may be refunded by the Department to the
facility. The facility can request a refund by amending their quarterly report
and submitting a written request for refund to the Department, or the facility
can request a refund when filing their nursing facility financial report or
revenue report.

(b) If there is an amount due from the facility for any
past due taxes or penalties, the refund otherwise allowable will be applied to
the unpaid taxes and penalties and the facility so notified.

(3) Payment of deficiency.

(a) If the amount of the tax is more than the amount
paid by the facility, the facility may file a corrected report on a form
approved by the Department and pay the deficiency at any time. The penalty
under OAR 410-050-0491 will stop accruing after the Department receives payment
of the total deficiency for the calendar quarter; and

(b) If there is an error in the determination of the
tax due, the facility may describe the circumstances of the late additional
payment with the late filing of the amended report. The Department, at its sole
discretion, may determine that a late additional payment does not constitute a
failure to file a report or pay an assessment giving rise to the imposition of
a penalty. In making this determination, the Department will consider the
circumstances, including but not limited to: nature and extent of error,
facility explanation of the error, evidence of prior errors, and evidence of
prior penalties (including evidence of informal dispositions or settlement
agreements). This provision only applies if the facility has filed a timely
original return and paid the assessment identified in the return.

(4) If the Department discovers or identifies
information in the administration of these tax rules that it determines could
give rise to the issuance of a notice of proposed action or the issuance of a
refund, the Department will issue notification pursuant to OAR 410-050-0511.

For the purpose of these rules, any reports, requests,
appeals, payments, or other response by the facility must be either received by
the Department before the close of business on the date due, or if mailed,
postmarked before midnight of the due date. When the due date falls on a
Saturday, Sunday, or legal holiday, the return is due on the next business day
following the Saturday, Sunday, or legal holiday.

In the case of a failure by the facility to file a
report or to maintain necessary and adequate records, the Department will
determine the tax liability of the facility according to the best of its
information and belief. Best of its information and belief means the Department
will use evidence on which a reasonable person would rely in determining the
tax, including but not limited to estimating the days of patient days based
upon the number of licensed beds in the facility. The Department’s
determination of tax liability will be the basis for the assessment due in a
notice of proposed action.

Consequence of Failure to File a
Report or Failure to Pay Tax When Due

(1) A long term care facility that fails to file a
quarterly report or pay a quarterly tax when due under OAR 410-050-0451 is
subject to a penalty of $500 per day of delinquency. The penalty accrues from
the date of deficiency, notwithstanding the date of any notice under these
rules.

(2) A long term care facility that is exempt from
paying provider taxes is not required to file a quarterly report, but is
required to file an annual cost or revenue report. Even if exempt, a long term
care facility that fails to file annual cost or revenue reports when due under
OAR 410-050-0451 is subject to a penalty of up to $500 per day of delinquency.
The penalty accrues from the date of delinquency, notwithstanding the date of
any notice under these rules.

(3) A long term care facility that fails to file an
annual cost report or revenue report when due under OAR 410-050-0451 is subject
to a penalty of up to $500 per day of delinquency. The penalty accrues from the
date of delinquency, notwithstanding the date of any notice under these rules.

(4) A long term care facility that files a cost report
or annual revenue report, but fails to pay a fiscal year reconciliation tax
payment when due under OAR 410-050-0451 is subject to a penalty of up to $500
per day of delinquency up to a maximum of five percent of the amount due. The
penalty accrues from the date of delinquency, notwithstanding the date of any
notice under these rules.

(5) The total amount of penalty imposed under this
section for each reporting period may not exceed five percent of the assessment
for the reporting period for which the penalty is being imposed.

(6) Penalties imposed under this section will be
collected by the Department and deposited in the Department’s account
established under ORS 409.060.

(7) Penalties paid under this section are in addition
to the long term care facility tax.

(8) If the Department determines that a facility is
subject to a penalty under this section, it will issue a notice of proposed
action as described in OAR 410-050-0511.

(9) If a facility requests a contested case hearing
pursuant to OAR 410-050-0531, the Director, at the Director’s sole discretion,
may waive or reduce the amount of penalty assessed.

(10) If a facility fails to report or pay the provider
tax after the Department issues a final order described in OAR 410-050-0541,
then the Department will pursue remedies described in 410-050-0551 that may
include a final order leading to collection activities; nursing facility
license denial, suspension, or revocation; admission restrictions; and
terminating provider contracts.

(1) The facility must maintain clinical and financial
records sufficient to determine the actual number of patient days for any
calendar period for which a tax may be due.

(2) The Department or its designee may audit the
facility’s records at any time for a period of three years following the date
the tax is due to verify or determine the number of patient days at the facility.

(3) The Department may issue a notice of proposed
action or issue a refund based upon its findings during the audit.

(4) Any audit, finding, or position may be reopened if
there is evidence of fraud, malfeasance, concealment, misrepresentation of
material fact, omission of income, or collusion either by the facility or by
the facility and a representative of the Department.

(5) The Department may issue a refund and otherwise
take such actions as it deems appropriate based upon the audit findings.

(1) Prior to issuing a notice of proposed action, the
Department will notify the facility of a potential deficiency or failure to
report that could give rise to the imposition of a penalty. The Department
shall issue a 30 day notification letter within 30 calendar days of the report
or payment due date. The facility shall have 30 calendar days from the date of
the notice to respond to the notification. The Department may consider the response,
if any, and any amended report under OAR 410-050-0461 in its notice of proposed
action. In all cases that the Department has determined that a facility has a
deficiency or failure to report, the Department shall issue a notice of
proposed action. The Department will not issue a notice of proposed action if
the issue is resolved satisfactorily within 59 days from the date of mailing
the 30 day notification letter.

(2) The Department shall issue a notice of proposed
action within 60 calendar days from the date of mailing the 30 day notification
letter.

(3) Contents of the notice of proposed action must
include:

(a) The applicable calendar quarter;

(b) The basis for determining the corrected amount of
tax for the quarter;

(c) The corrected tax due for the quarter as determined
by the Department;

(d) The amount of tax paid for the quarter by the
facility;

(e) The resulting deficiency, which is the difference
between the amount received by the Department for the calendar quarter and the
corrected amount due as determined by the Department;

(f) Statutory basis for the penalty;

(g) Amount of penalty per day of delinquency;

(h) Date upon which the penalty began to accrue;

(i) Date the penalty stopped accruing or circumstances
under which the penalty will stop accruing;

(1) Any amounts due and owing under the final order of
payment and any interest thereon may be recovered by Oregon as a debt to the
state, using any available legal and equitable remedies. These remedies
include, but are not limited to:

(a) Collection activities including but not limited to
deducting the amount of the final deficiency and penalty from any sum then or
later owed to the facility or its owners or operators by the Department, CMS,
or their designees to the extent allowed by law;

(c) Restrictions of admissions to the facility under
OAR 411-089-0050; and

(d) Terminating the provider contract with the owners
or operators of the facility under OAR 411-070-0015.

(2) Every payment obligation shall bear interest at the
statutory rate of interest in ORS 82.010 accruing from the date of the final
order of payment and continuing until the payment obligation, including
interest, has been discharged.

(1) The amount of the tax is based on the assessment
rate determined by the Director multiplied by the number of patient days at the
long term care facility for a calendar quarter.

(2) The Director must establish an annual assessment
rate for long term care facilities that applies for each 12-month period
beginning July 1. The Director must establish the assessment rate on or before
June 15 preceding the 12-month period for which the rate applies.

(3) On or before October 31, the Department will refund
any overages from the prior fiscal year. For example, by October 31, 2007, the
Department will refund any overages from fiscal year 2006. Overages are defined
as any amount of provider tax that exceeds the federal maximum provider tax
limit in effect for the fiscal year.

The long term care facility tax may be imposed only in
a calendar quarter for which the long term care facility reimbursement rate
that is part of the Oregon Medicaid reimbursement system was calculated
according to the methodology described in Oregon Laws 2003, chapter 736,
section 24.

Subject: The Department of Human Services (DHS), Seniors and
People with Disabilities Division (SPD) is temporarily amending the long-term
support for children with developmental disabilities rules in OAR chapter 411,
division 308 to:

• Implement a
limitation on the maximum amount of support available to each child;

• Clarify the
requirement to fully utilize all appropriate alternate resources, prior to and
during enrollment, to reduce per case costs; and

• Clarify that
the eight hours of unpaid support the child’s family is expected to provide
excludes sleeping hours.

The temporary
rulemaking allows SPD to continue to provide long-term support through the end
of the current biennium. Long-term support allows children to remain in their
family homes and prevents out of home placement.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-308-0020

Definitions

(1) “Abuse” means abuse of a child as defined in ORS
419B.005.

(2) “Activities of Daily Living (ADL)” mean activities
usually performed in the course of a normal day in the child’s life such as
eating, dressing and grooming, bathing and personal hygiene, mobility
(ambulation and transfer), elimination (toileting, bowel, and bladder
management), and cognition and behavior (play and social development).

(3) “Annual Support Plan” means the written details of
the supports, activities, costs, and resources required for a child to be
supported by the family in the family home. The child’s Annual Support Plan
articulates decisions and agreements made through a child- and family-centered
process of planning and information-gathering conducted or arranged for by the
child’s services coordinator that involves the child (to the extent normal and
appropriate for the child’s age) and other persons who have been identified and
invited to participate by the child’s parent or guardian. The child’s Annual
Support Plan is the only plan of care required by the Division for a child
receiving long-term support.

(4) “Assistant Director” means the assistant director
of the Division, or that person’s designee.

(5) “Child” means an individual under the age of 18 and
eligible for long-term support.

(6) “Children’s Intensive In-Home Services” means, for
the purpose of these rules, the services described in:

(7) “Community Developmental Disability Program (CDDP)”
means an entity that is responsible for planning and delivery of services for
individuals with developmental disabilities in a specific geographic service
area of the state operated by or under contract with the Division or a local
mental health authority.

(8) “Cost Effective” means that a specific service or
support meets the child’s service needs and costs less than, or is comparable
to, other service options considered.

(9) “CPMS” means the Client Processing Monitoring
System.

(10) “Crisis” means the risk factors described in OAR
411-320-0160(2) are present for which no appropriate alternative resources are
available and the child meets the eligibility requirements for crisis diversion
services in OAR 411-320-0160(3).

(11) “Department” means the Department of Human
Services (DHS).

(12) “Developmental Disability” means a disability that
originates in the developmental years, that is likely to continue, and
significantly impacts adaptive behavior as diagnosed and measured by a
qualified professional. Developmental disabilities include mental retardation,
autism, cerebral palsy, epilepsy, or other neurological disabling conditions
that require training or support similar to that required by individuals with
mental retardation, and the disability:

(a) Originates before the individual reaches the age of
22 years, except that in the case of mental retardation, the condition must be
manifested before the age of 18;

(b) Originates and directly affects the brain and has
continued, or must be expected to continue, indefinitely;

(c) Constitutes a significant impairment in adaptive
behavior; and

(d) Is not primarily attributed to other conditions,
including but not limited to mental or emotional disorder, sensory impairment,
substance abuse, personality disorder, learning disability, or Attention
Deficit Hyperactivity Disorder.

(13) “Division” means the Department of Human Services,
Seniors and People with Disabilities Division (SPD).

(14) “Employer-Related Supports” mean activities that
assist a family with directing and supervising provision of services described
in a child’s Annual Support Plan. Supports to a family assuming the role of
employer include but are not limited to:

(a) Education about employer responsibilities;

(b) Orientation to basic wage and hour issues;

(c) Use of common employer-related tools such as job
descriptions; and

(d) Fiscal intermediary services.

(15) “Family” for determining a child’s eligibility for
long-term support as a resident in the family home, for identifying persons who
may apply, plan, and arrange for a child’s supports, and for determining who
may receive family training, means a unit of two or more persons that includes
at least one child with developmental disabilities where the primary caregiver
is:

(a) Related to the child by blood, marriage, or legal
adoption; or

(b) In a domestic relationship where partners share:

(A) A permanent residence;

(B) Joint responsibility for the household in general
(e.g. child-rearing, maintenance of the residence, basic living expenses); and

(C) Joint responsibility for supporting a child in the
household with developmental disabilities and the child is related to one of
the partners by blood, marriage, or legal adoption.

(16) “Family Home” means a child’s primary residence
that is not licensed, certified by, and under contract with the Department as a
foster home, residential care facility, assisted living facility, nursing
facility, or other residential support program site.

(17) “Fiscal Intermediary” means a person or entity
that receives and distributes long-term support funds on behalf of the family
of an eligible child according to the child’s Annual Support Plan.

(18) “Founded Reports” means the Department’s Children,
Adults, and Families Division or Law Enforcement Authority (LEA) determination,
based on the evidence, that there is reasonable cause to believe that conduct
in violation of the child abuse statutes or rules has occurred and such conduct
is attributable to the person alleged to have engaged in the conduct.

(19) “General Business Provider” means an organization
or entity selected by the parent or guardian of an eligible child, and paid
with long-term support funds that:

(a) Is primarily in business to provide the service
chosen by the child’s parent or guardian to the general public;

(b) Provides services for the child through employees,
contractors, or volunteers; and

(c) Receives compensation to recruit, supervise, and
pay the persons who actually provide support for the child.

(20) “Guardian” means a person or agency appointed and
authorized by the courts to make decisions about services for the child.

(21) “Incident Report” means a written report of any
injury, accident, act of physical aggression, or unusual incident involving a
child.

(22) “Independent Provider” means a person selected by
a child’s parent or guardian and paid with long-term support funds that
personally provide services to the child.

(23) “Individual” means a person with developmental
disabilities for whom services are planned and provided.

(24) “Long-Term Support” means individualized planning
and service coordination, arranging for services to be provided in accordance
with Annual Support Plans, and purchase of supports that are not available
through other resources that are required for children with developmental
disabilities who are eligible for crisis diversion services to live in the
family home. Long-term supports are designed to:

(a) Prevent unwanted out-of-home placement and maintain
family unity; and

(b) Whenever possible, reunite families with children
with developmental disabilities who have been placed out of the home.

(25) “Long-Term Support Funds” mean public funds
contracted by the Department to the community developmental disability program
and managed by the community developmental disability program to assist
families with the purchase of supports for children with developmental
disabilities according to each child’s Annual Support Plan. Long-term support
funds are available only to children for whom the Department designates funds
to the community developmental disability program by written contracts that
specify the children by name.

(26) “Mandatory Reporter” means any public or private
official who comes in contact with and has reasonable cause to believe a child
has suffered abuse, or comes in contact with any person whom the official has
reasonable cause to believe abused a child, regardless of whether or not the
knowledge of the abuse was gained in the reporter’s official capacity. Nothing
contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by
this section, except that a psychiatrist, psychologist, clergyman, attorney, or
guardian ad litem appointed under ORS 419B.231 shall not be required to report
such information communicated by a person if the communication is privileged
under ORS 40.225 to 40.295.

(27) “Nurse” means a person who holds a current license
from the Oregon Board of Nursing as a registered nurse or licensed practical
nurse pursuant to ORS chapter 678.

(28) “Nursing Care Plan” means a plan of care developed
by a nurse that describes the medical, nursing, psychosocial, and other needs
of a child and how those needs shall be met. The Nursing Care Plan includes
which tasks shall be taught, assigned, or delegated to the qualified provider
or family.

(29) “OHP” means the Oregon Health Plan.

(30) “Oregon Intervention System (OIS)” means a system
of providing training to people who work with designated individuals to
intervene physically or non-physically to keep individuals from harming self or
others. The Oregon Intervention System is based on a positive approach that
includes methods of effective evasion, deflection, and escape from holding.

(31) “Plan Year” means twelve consecutive months used
to calculate what long-term support funds may be made available annually to
support an eligible child.

(a) Emphasizes the development of functional
alternative behavior and positive behavior intervention;

(b) Uses the least intervention possible;

(c) Ensures that abusive or demeaning interventions are
never used; and

(d) Evaluates the effectiveness of behavior
interventions based on objective data.

(33) “Provider Organization” means an entity selected
by a child’s parent or guardian, and paid with long-term support funds that:

(a) Is primarily in business to provide supports for
individuals with developmental disabilities;

(b) Provides supports for the individual through
employees, contractors, or volunteers; and

(c) Receives compensation to recruit, supervise, and
pay the persons who actually provide support for the individual.

(34) “Quality Assurance” means a systematic procedure
for assessing the effectiveness, efficiency, and appropriateness of services.

(35) “Regional Process” means a standardized set of
procedures through which a child’s Annual Support Plan and funding to implement
the Annual Support Plan are reviewed for approval. The process includes review
of the potential risk of out-of-home placement, the appropriateness of the proposed
supports, and cost effectiveness of the Annual Support Plan.

(36) “Services Coordinator” means an employee of the
community developmental disability program or other agency that contracts with
the county or Division, who plans, procures, coordinates, and monitors
long-term support, and acts as a proponent for children with developmental
disabilities and their families.

(37) “Substantiated” means an abuse investigation has
been completed by the Department or the Department’s designee and the preponderance
of the evidence establishes the abuse occurred.

(38) “Support” means assistance eligible children and
their families require, solely because of the effects of developmental
disability on the child, to maintain the child in the family home.

(39) “These Rules” mean the rules in OAR chapter 411,
division 308.

(40) “Volunteer” means any person providing services
without pay to a child receiving long term supports.

(1) In any plan year, long-term support funds used to
purchase supports for a child must be limited to the amount of long-term
support funds specified in the child’s Annual Support Plan. The amount of
long-term support funds specified in the child’s Annual Support Plan may not
exceed the maximum allowable monthly plan amount published in the Division’s
rate guidelines in any month during the plan year.

(2) Payment rates used to establish the limits of
financial assistance for specific service in the child’s Annual Support Plan
must be based on the Division’s rate guidelines for costs of frequently-used
services. Division rate guidelines notwithstanding, final costs may not exceed
local usual and customary charges for these services as evidenced by the CDDP’s
own documentation.

(1) ELIGIBILITY. The CDDP of a child’s county of
residence may find a child eligible for long-term support when the child:

(a) Is determined eligible for developmental disability
services by the CDDP;

(b) Is under the age of 18;

(c) Is experiencing a crisis as defined in OAR
411-308-0020 and may be safely served in the family home;

(d) Has exhausted all appropriate alternative
resources, including but not limited to natural supports and children’s
intensive in-home services as defined in OAR 411-308-0020;

(e) Does not receive or will stop receiving other
Department-paid in-home or community living services other than state Medicaid
plan services, adoption assistance, or short-term assistance, including crisis
services provided to prevent out-of-home placement; and

(f) Is at risk of out-of-home placement and requires
long-term support to be maintained in the family home; or

(g) Requires long-term support to return to the family
home and resides in a Department-paid residential service.

(2) CONCURRENT ELIGIBLITY. Children are not eligible
for long-term support from more than one CDDP unless the concurrent service:

(a) Is necessary to affect transition from one county
to another with a change of residence;

(1) ENTRY. An eligible child may enter long-term
support only when long-term support needs are authorized through a regional
process specifically to provide supports required to prevent out-of-home
placement of the eligible child, or to provide supports required for an
eligible child to return to the family home from a community placement.
Long-term support funding must be reauthorized on an annual basis, prior to the
beginning of a new Annual Support Plan.

(2) DURATION OF SERVICES. Once a child has entered
long-term support, the child and family may continue receiving services from
that CDDP through the last day of the month during which the child turns 18, as
long as the supports continue to be necessary to prevent out-of-home placement,
the child remains eligible for long-term support, and long-term support funds
are available at the CDDP and authorized by the Division to continue services.
The child’s Annual Support Plan must be developed each year and kept current.

(3) CHANGE IN SUPPORTS. All increases in the child’s
Annual Support Plan, excluding statewide cost of living increases, must be
approved through a regional process. Redirection of more than 25 percent of the
long-term support funds in the child’s Annual Support Plan to purchase different
supports than those originally authorized must be approved through a regional
process.

(4) CHANGE OF COUNTY OF RESIDENCE. If a child and
family move outside the CDDP’s area of service, the originating CDDP must
arrange for services purchased with long-term support funds to continue, to the
extent possible, in the new county of residence. The originating CDDP must:

(a) Provide information about the need to apply for
services in the new CDDP and assist the family with application for services if
necessary; and

(b) Contact the new CDDP to negotiate the date on which
the long-term support, including responsibility for payments, shall transfer to
the new CDDP.

(5) EXIT. A child must leave a CDDP’s long-term
support:

(a) When the child no longer resides in the family
home;

(b) At the written request of the child’s parent or
guardian to end the long-term supports;

(c) When the long-term supports are no longer necessary
to prevent out-of-home placement due to either;

(A) The risk of out of home placement no longer exists
due to changes in either the child’s support needs or the family’s ability to
provide the support; or

(B) Appropriate alternative resources become available,
including but not limited to supports through children’s intensive in-home
services as defined in OAR 411-308-0020.

(d) At the end of the last day of the month during
which the child turns 18;

(e) When the child and family moves to a county outside
the CDDP’s area of service, unless transition services have been previously
arranged and authorized by the CDDP as required in section (4) of this rule; or

(f) No less than 30 days after the CDDP has served
written notice, in the language used by the family, of intent to terminate
services because:

(A) The child’s family either cannot be located or has
not responded to repeated attempts by CDDP staff to complete the child’s Annual
Support Plan development and monitoring activities and does not respond to the
notice of intent to terminate; or

(B) The CDDP has sufficient evidence that the family
has engaged in fraud or misrepresentation, failed to use resources as agreed
upon in the child’s Annual Support Plan, refused to cooperate with documenting
expenses, or otherwise knowingly misused public funds associated with long-term
support.

(1) The CDDP must provide or arrange for an annual
planning process to assist families in establishing outcomes, determining
needs, planning for supports, and reviewing and redesigning support strategies
for all children eligible for long-term support. The planning process must
occur in a manner that:

(a) Identifies and applies existing abilities,
relationships, and resources while strengthening naturally occurring
opportunities for support at home and in the community; and

(b) Is consistent in both style and setting with the
child’s and family’s needs and preferences, including but not limited to
informal interviews, informal observations in home and community settings, or
formally structured meetings.

(2) The CDDP, the child (as appropriate), and the
child’s family must develop a written Annual Support Plan for the child as a
result of the planning process prior to purchasing supports with long-term
support funds and annually thereafter. The child’s Annual Support Plan must include
but not be limited to:

(a) The eligible child’s legal name and the name of the
child’s parent (if different than the child’s last name), or the name of the
child’s guardian;

(b) A description of the supports and the reason the
support is necessary to prevent out-of-home placement or to return the child
from a community placement outside the family home;

(c) Beginning and end dates of the plan year as well as
when specific activities and supports are to begin and end;

(d) The type of provider, quantity, frequency, and per
unit cost of supports to be purchased with long-term support funds;

(e) Total annual cost of supports;

(f) The schedule of the child’s Annual Support Plan
reviews; and

(g) Signatures of the child’s services coordinator, the
child’s parent or guardian, and the child (as appropriate).

(3) The child’s Annual Support Plan or records
supporting development of each child’s Annual Support Plan must include
evidence that:

(a) Long-term support funds are used only to purchase
goods or services necessary to prevent the child from out-of-home placement, or
to return the child from a community placement to the family home;

(b) The services coordinator has assessed the
availability of other means for providing the supports before using long-term
support funds, and other public, private, formal, and informal resources
available to the child have been applied and new resources have been developed
whenever possible;

(c) Basic health and safety needs and supports have
been addressed including but not limited to identification of risks including
risk of serious neglect, intimidation, and exploitation;

(d) Informed decisions by the child’s parent or
guardian regarding the nature of supports or other steps taken to ameliorate
any identified risks; and

(e) Education and support for the child and the child’s
family to recognize and report abuse.

(4) The services coordinator must obtain and attach a
Nursing Care Plan to the child’s written Annual Support Plan when long-term
support funds are used to purchase care and services requiring the education
and training of a nurse.

(5) The services coordinator must obtain and attach a
Behavior Support Plan to the child’s written Annual Support Plan when the
Behavior Support Plan shall be implemented by the child’s family or providers
during the plan year.

(6) Long-term supports may only be provided after the
child’s Annual Support Plan is developed in accordance with sections (1), (2),
(3), (4), and (5) of this rule, authorized by the CDDP, and signed by the child’s
parent or guardian.

(7) The services coordinator must review and reconcile
receipts and records of purchased supports authorized by the child’s Annual
Support Plan and subsequent Annual Support Plan documents, at least quarterly
during the plan year.

(8) At least annually or more frequently if required by
the region, the services coordinator must conduct and document reviews of the
child’s Annual Support Plan and resources with the child’s family as follows:

(a) Evaluate progress toward achieving the purposes of
the child’s Annual Support Plan;

(b) Record actual long-term support fund costs;

(c) Note effectiveness of purchases based on services
coordinator observation as well as family satisfaction; and

(d) Determine whether changing needs or availability of
other resources have altered the need for specific supports or continued use of
long-term support funds to purchase supports. This must include a review of the
child’s continued risk for out-of-home placement and the availability of
alternate resources, including eligibility for children’s intensive in-home
services as defined in OAR 411-308-0020.

(9) When the family and eligible child move to a county
outside its area of service, the originating CDDP must assist long-term support
recipients by:

(a) Continuing long-term support fund payments
authorized by the child’s Annual Support Plan which is current at the time of
the move, if the support is available, until the transfer date agreed upon
according to OAR 411-308-0070(4)(b); and

(b) Transferring the unexpended portion of the child’s
long-term support funds to the new CDDP of residence.

(1) Funds contracted to a CDDP by the Division to serve
a specifically-named child must only be used to support that specified child.
Services must be provided according to each child’s approved Annual Support
Plan. The funds may only be used to purchase supports described in OAR
411-308-0120. Continuing need for services must be regularly reviewed according
to the Division’s procedures described in these rules.

(a) Children’s intensive in home services as defined in
OAR 411-308-0020;

(b) Direct assistance or immediate access funds under
family support; or

(c) Long-term support from another CDDP unless
short-term concurrent services are necessary when a child moves from one CDDP
to another and the concurrent supports are arranged in accordance with OAR
411-308-0060(2).

(3) Children receiving long-term support may receive
short-term crisis diversion services provided through the CDDP or region.
Children receiving long-term support may utilize family support information and
referral services, other than direct assistance or immediate access funds,
while receiving long-term support. The CDDP must clearly document the services
and demonstrate that the services are arranged in a manner that does not allow
duplication of funding.

(1) When conditions of purchase are met and provided
purchases are not prohibited under OAR 411-308-0110, long-term support funds may
be used to purchase a combination of the following supports based upon the
needs of the child consistent with the child’s Annual Support Plan and
available funding:

(2) SPECIALIZED CONSULTATION – BEHAVIOR
CONSULTATION. Behavior consultation is the purchase of individualized
consultation provided only as needed in the family home to respond to a
specific problem or behavior identified by the child’s parent or guardian and
the services coordinator. Behavior consultation services must be documented in
a Behavior Support Plan prior to final payment for the services.

(a) Behavior consultation shall only be authorized to
support a primary caregiver in their caregiving role, not as a replacement for
an educational service offered through the school.

(b) Behavior consultation must include:

(A) Working with the family to identify:

(i) Areas of a child’s family home life that are of
most concern for the family and child;

(ii) The formal or informal responses the family or
provider has used in those areas; and

(iii) The unique characteristics of the family that
could influence the responses that would work with the child.

(B) ASSESSING THE CHILD. The behavior consultant
utilized by the family must conduct an assessment and interact with the child
in the family home and community setting in which the child spends most of
their time. The assessment must include:

(i) Specific identification of the behaviors or areas
of concern;

(ii) Identification of the settings or events likely to
be associated with or to trigger the behavior;

(iii) Identification of early warning signs of the
behavior;

(iv) Identification of the probable reasons that are
causing the behavior and the needs of the child that are being met by the
behavior, including the possibility that the behavior is:

(I) An effort to communicate;

(II) The result of a medical condition;

(III) The result of an environmental cause; or

(IV) The symptom of an emotional or psychiatric
disorder.

(v) Evaluation and identification of the impact of
disabilities (i.e. autism, blindness, deafness, etc.) that impact the
development of strategies and affect the child and the area of concern;

(C) Developing a variety of positive strategies that
assist the family and provider to help the child use acceptable, alternative
actions to meet the child’s needs in the most cost effective manner. These
strategies may include changes in the physical and social environment,
developing effective communication, and appropriate responses by a family and
provider to the early warning signs.

(i) Positive, preventive interventions must be
emphasized.

(ii) The least intrusive intervention possible must be
used.

(iii) Abusive or demeaning interventions must never be
used.

(iv) The strategies must be adapted to the specific
disabilities of the child and the style or culture of the family.

(D) Developing emergency and crisis procedures to be
used to keep the child, family, and provider safe. When interventions in the
behavior of the child are necessary, positive, preventative, non-aversive
interventions that conform to OIS must be utilized. The Division does not pay a
provider to use physical restraints on a child receiving long-term support.

(E) Developing a written Behavior Support Plan
consistent with OIS that includes the following:

(i) Use of clear, concrete language and in a manner
that is understandable to the family and provider; and

(ii) Describes the assessment, recommendations,
strategies, and procedures to be used.

(F) Teaching the provider and family the recommended
strategies and procedures to be used in the child’s natural environment.

(G) Monitoring, assessing, and revising the Behavior
Support Plan as needed based on the effectiveness of implemented strategies. If
protective physical intervention techniques are included in the Behavior
Support Plan for use by the family, monthly practice of the technique must be
observed by an OIS approved trainer.

(c) Behavior consultation does not include:

(A) Mental health therapy or counseling;

(B) Health or mental health plan coverage; or

(C) Educational services including but not limited to
consultation and training for classroom staff, adaptations to meet the needs of
the child at school, assessment in the school setting for the purposes of an
Individualized Education Program, or any service identified by the school as
required to carry out the child’s Individualized Education Program.

(3) SPECIALIZED CONSULTATION – NURSING
DELEGATION.

(a) Nursing delegation is the purchase of
individualized consultation from a nurse in order to delegate tasks of nursing
services in select situations. Tasks of nursing care are those procedures that
require nursing education and licensure of a nurse to perform as described in
OAR chapter 851, division 047.

(b) The Division requires nursing delegation for
unlicensed providers paid with long-term support funds when a child requires
tasks of nursing care.

(4) ENVIRONMENTAL ACCESSIBILITY ADAPTATIONS.

(a) Environmental accessibility adaptations include:

(A) Physical adaptations to a family home that are
necessary to ensure the health, welfare, and safety of the child in the family
home due to the child’s developmental disability or that are necessary to
enable the child to function with greater independence around the family home
and in family activities;

(B) Environmental modification consultation to
determine the appropriate type of adaptation to ensure the health, welfare, and
safety of the child; and

(C) Motor vehicle adaptations for the primary vehicle
used by the child that are necessary to meet the unique needs of the child and
ensure the health, welfare, and safety of the child.

(b) Environmental accessibility adaptations exclude:

(A) Adaptations or improvements to the family home that
are of general utility and are not for the direct safety, remedial, or long
term benefit to the child;

(B) Adaptations that add to the total square footage of
the family home; and

(C) General repair or maintenance and upkeep required
for the family home or motor vehicle, including repair of damage caused by the
child.

(c) Funding for environmental accessibility adaptations
is one time funding that is not continued in subsequent plan years. Funding for
each environmental accessibility adaptation must be specifically approved
through a regional process to ensure the specific adaptation is necessary to
prevent out-of-home placement or to return the child to the family home, and to
ensure that the proposed adaptation is cost effective. Environmental
accessibility adaptations may only be included in a child’s Annual Support Plan
when all other public and private resources for the environmental accessibility
adaptation have been exhausted.

(d) The CDDP must ensure that projects for
environmental accessibility adaptations involving building renovation or new
construction in or around a child’s home costing $5,000 or more per single
instance or cumulatively over several modifications:

(A) Are approved by the Division before work begins and
before final payment is made;

(B) Are completed or supervised by a contractor
licensed and bonded in the State of Oregon; and

(C) That steps are taken as prescribed by the Division
for protection of the Division’s interest through liens or other legally
available means.

(e) The CDDP must obtain written authorization from the
owner of a rental structure before any environmental accessibility adaptations
are made to that structure. This does not preclude any reasonable accommodation
required under the Americans with Disabilities Act.

(5) FAMILY CAREGIVER SUPPORTS. Family caregiver
services assist families with unusual responsibilities of planning and managing
provider services for their children.

(a) Family caregiver supports include:

(A) Child and family-centered planning facilitation and
follow-up;

(B) Fiscal intermediary services to pay vendors and to
carry out payroll and reporting functions when providers are domestic employees
of the family; and

(C) Assistance with development of tools such as job
descriptions, contracts, and employment agreements.

(b) Family caregiver supports exclude application fees
and the cost of fingerprinting or other background check processing fee
requirements.

(6) FAMILY TRAINING. Family training services include
the purchase of training, coaching, counseling, and support that increase the
family’s ability to care for and maintain the child in the family home.

(a) Family training services include:

(A) Counseling services that assist the family with the
stresses of having a child with a developmental disability.

(i) To be authorized, the counseling services must:

(I) Be provided by licensed providers including but not
limited to psychologists licensed under ORS 675.030, professionals licensed to
practice medicine under ORS 677.100, social workers licensed under ORS 675.530,
and counselors licensed under ORS 675.715;

(II) Directly relate to the child’s developmental
disability and the ability of the family to care for the child; and

(III) Be short-term.

(ii) Counseling services are excluded for:

(I) Therapy that could be obtained through OHP or other
payment mechanisms;

(II) General marriage counseling;

(III) Therapy to address family members’
psychopathology;

(IV) Counseling that addresses stressors not directly
attributed to the child;

(V) Legal consultation;

(VI) Vocational training for family members; and

(VII) Training for families to carry out educational
activities in lieu of school.

(B) Registration fees for organized conferences, workshops,
and group trainings that offer information, education, training, and materials
about the child’s developmental disability, medical, and health conditions.

(i) Conferences, workshops, or group trainings must be
prior authorized and include those that:

(I) Directly relate to the child’s developmental
disability; and

(II) Increase the knowledge and skills of the family to
care for and maintain the child in the family home.

(ii) Conference, workshop, or group trainings costs
exclude:

(I) Registration fees in excess of $500 per family for
an individual event;

(II) Travel, food, and lodging expenses;

(III) Services otherwise provided under OHP or
available through other resources; or

(IV) Costs for individual family members who are
employed to care for the child.

(b) Funding for family training is one time funding
that is not continued in subsequent plan years. Funding for each family
training event must be specifically approved through a regional process to
ensure the family training event is necessary to prevent out-of-home placement
or to return the child to the family home, and to ensure the family training
event is cost effective. Family training may only be included in a child’s
Annual Support Plan when all other public and private resources for the event
have been exhausted.

(7) IN-HOME DAILY CARE. In-home daily care services
include the purchase of direct provider support provided to the child in the
family home or community by qualified individual providers and agencies.
Provider assistance provided through in-home daily care must support the child
to live as independently as appropriate for the child’s age and must be based
on the identified needs of the child, supporting the family in their primary
caregiving role. Primary caregivers are expected to be present or immediately
available during the provision of in-home daily care.

(G) Supervision – Providing an environment that
is safe and meaningful for the child and interacting with the child to prevent
danger to the child and others, and maintain skills and behaviors required to
live in the home and community;

(H) Assisting the child with appropriate leisure
activities to enhance development in and around the family home and provide
training and support in personal environmental skills;

(I) Communication – Assisting the child in
communicating, using any means used by the child;

(B) Be necessary to resolve the crisis and documented
in the child’s Annual Support Plan;

(C) Be delivered through the most cost effective method
as determined by the services coordinator; and

(D) Only be provided when the child is present to
receive services.

(c) In-home daily care services exclude:

(A) Hours that supplant the natural supports and
services available from family, community, other government or public services,
insurance plans, schools, philanthropic organizations, friends, or relatives;

(B) Hours to allow a primary caregiver to work or
attend school;

(C) Hours that exceed what is necessary to resolve the
crisis;

(D) Support generally provided at the child’s age by
parents or other family members;

(E) Educational and supportive services provided by
schools as part of a free and appropriate education for children and young
adults under the Individuals with Disabilities Education Act;

(F) Services provided by the family; and

(G) Home schooling.

(d) In-home daily care services may not be provided on
a 24-hour shift-staffing basis. The child’s primary caregiver is expected to
provide at least eight hours of care and supervision for the child each day
with the exception of overnight respite. The eight hours of care and
supervision may not include hours when the child’s primary caregiver is
sleeping.

(8) RESPITE. Respite services are provided to a child
on a periodic or intermittent basis furnished because of the temporary absence
of, or need for relief of, the primary caregiver.

(a) Respite may include both day and overnight services
that may be provided in:

(A) The family home;

(B) A licensed, certified, or otherwise regulated setting;

(C) A qualified provider’s home. If overnight respite
is provided in a qualified provider’s home, the CDDP and the child’s parent or
guardian must document that the home is a safe setting for the child; or

(D) Disability-related or therapeutic recreational
camp.

(b) The CDDP shall not authorize respite services:

(A) To allow primary caregivers to attend school or
work;

(B) That are ongoing and occur on more than a periodic
schedule, such as eight hours a day, five days a week;

(C) On more than 14 consecutive overnight stays in a
calendar month;

(D) For more than 10 days per individual plan year when
provided at a specialized camp;

(E) For vacation travel and lodging expenses; or

(F) To pay for room and board if provided at a licensed
site or specialized camp.

(9) SPECIALIZED EQUIPMENT AND SUPPLIES. Specialized
equipment and supplies include the purchase of devices, aids, controls,
supplies, or appliances that are necessary to enable a child to increase their
abilities to perform and support activities of daily living, or to perceive,
control, or communicate with the environment in which they live.

(a) The purchase of specialized equipment and supplies
may include the cost of a professional consultation, if required, to assess,
identify, adapt, or fit specialized equipment. The cost of professional
consultation may be included in the purchase price of the equipment.

(b) To be authorized by the CDDP, specialized equipment
and supplies must:

(A) Be in addition to any medical equipment and
supplies furnished under OHP and private insurance;

(B) Be determined necessary to the daily functions of
the child; and

(C) Be directly related to the child’s disability.

(c) Specialized equipment and supplies exclude:

(A) Items that are not necessary or of direct medical
or remedial benefit to the child;

(B) Specialized equipment and supplies intended to
supplant similar items furnished under OHP or private insurance;

(C) Items available through family, community, or other
governmental resources;

(D) Items that are considered unsafe for the child;

(E) Toys or outdoor play equipment; and

(F) Equipment and furnishings of general household use.

(d) Funding for specialized equipment with an expected
life of more than one year is one time funding that is not continued in
subsequent plan years. Funding for each specialized equipment purchase must be
specifically approved through a regional process to ensure the support is
necessary to prevent out-of-home placement or to return the child to the family
home, and to ensure the support is cost effective. Specialized equipment may
only be included in a child’s Annual Support Plan when all other public and
private resources for the equipment have been exhausted.

(e) The CDDP must secure use of equipment or
furnishings costing more than $500 through a written agreement between the CDDP
and the child’s parent or guardian that specifies the time period the item is
to be available to the child and the responsibilities of all parties should the
item be lost, damaged, or sold within that time period. Any equipment or
supplies purchased with long-term support funds that are not used according to
the child’s Annual Support Plan, or according to an agreement securing the
state’s use, may be immediately recovered.

Subject: In response to legislatively required budget
reductions effective October 1, 2010, the Department of Human Services (DHS),
Seniors and People with Disabilities Division (SPD) is changing the
certification period to five years for:

In addition,
language associated with the certification timeframe and provider expectations
is also being changed to comply with the five year cycle.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-328-0570

Issuance of Certificate

(1) No person or governmental unit acting individually
or jointly with any other person or governmental unit shall establish, conduct,
maintain, manage, or operate a supported living program without being
certified.

(2) Each certificate is issued only for the supported
living program and persons or governmental units named in the application and
is not transferable or assignable.

(3) A certificate issued on or before February 1, 2009
shall be valid for a maximum of five years unless revoked or suspended.

(4) As part of the certificate renewal process, the
service provider must conduct a self-evaluation based upon the requirements of
this rule.

(a) The service provider must document the self-evaluation
information on forms provided by the Division;

(b) The service provider must develop and implement a
plan of improvement based upon the findings of the self-evaluation; and

(c) The service provider must submit these documents to
the local CDDP with a copy to the Division.

(5) The Division shall conduct a review of the service
provider prior to the issuance of a certificate.

(1) NON-DISCRIMINATION. The program must comply with
all applicable state and federal statutes, rules, and regulations in regard to
non-discrimination in employment practices.

(2) PROHIBITION AGAINST RETALIATION. A community
program or service provider may not retaliate against any staff who reports in
good faith suspected abuse or retaliate against the adult with respect to any
report. An alleged perpetrator may not self-report solely for the purpose of
claiming retaliation.

(a) Any community facility, community program, or
person that retaliates against any person because of a report of suspected
abuse or neglect shall be liable according to ORS 430.755, in a private action
to that person for actual damages and, in addition, shall be subject to a
penalty up to $1000, notwithstanding any other remedy provided by law.

(b) Any adverse action is evidence of retaliation if
taken within 90 days of a report of abuse. Adverse action means only those
actions arising solely from the filing of an abuse report. For purposes of this
subsection, “adverse action” means any action taken by a community facility,
community program, or person involved in a report against the person making the
report or against the adult because of the report and includes but is not
limited to:

(A) Discharge or transfer from the community program,
except for clinical reasons;

(B) Discharge from or termination of employment;

(C) Demotion or reduction in remuneration for services;
or

(D) Restriction or prohibition of access to the
community program or the residents served by the program.

(a) Be prepared at the time, or immediately following
the event being recorded;

(b) Be accurate and contain no willful falsifications;

(c) Be legible, dated, and signed by the person making
the entry; and

(d) Be maintained for no less than five years.

(4) DISSOLUTION. Prior to the dissolution of a program,
a representative of the governing body or owner must notify the Division 30
days in advance in writing and make appropriate arrangements for the transfer
of individuals’ records.

(1) NON-DISCRIMINATION. The agency must comply with all
applicable state and federal statutes, rules, and regulations in regard to
non-discrimination in employment practices.

(2) BASIC PERSONNEL POLICIES AND PROCEDURES. The agency
must have and implement personnel policies and procedures that address
suspension, increased supervision, or other appropriate disciplinary employment
procedures when an agency staff member, or subcontractor including respite
providers and volunteers, has been identified as an accused person in an abuse
investigation or when the allegation of abuse has been substantiated. Policy
must reflect that any incurred crime as described under the criminal records
check rules in OAR 407-007-0200 to 407-007-0370 shall be reported to the
agency.

(3) APPLICATION FOR EMPLOYMENT. An application for
employment at the agency must inquire whether an applicant has had any founded
reports of child abuse or substantiated abuse.

(4) CRIMINAL RECORDS CHECKS. Any employee, volunteer,
proctor provider, respite provider, crisis provider, advisor, skill trainer, or
any subject individual defined by OAR 407-007-0200 to 407-007-0370, who has or
will have contact with a resident of the agency, must have an approved criminal
records check in accordance with OAR 407-007-0200 to 407-007-0370 and under ORS
181.534.

(a) Effective July 28, 2009, the agency may not use
public funds to support, in whole or in part, a person as described in section
(4) of this rule in any capacity who has been convicted of any of the
disqualifying crimes listed in OAR 407-007-0275.

(b) Section (4)(a) of this rule does not apply to employees
of the proctor provider or proctor agency who were hired prior to July 28, 2009
and remain in the current position for which the employee was hired.

(c) Any employee, volunteer, proctor provider, respite
provider, crisis provider, advisor, skill trainer, or any subject individual
defined by OAR 407-007-0200 to 407-007-0370 must self-report any potentially
disqualifying condition as described in OAR 407-007-0280 and OAR 407-007-0290.
The person must notify the Department or its designee within 24 hours.

(5) INVESTIGATIONS. For investigations conducted by the
Department or the Department’s designee in homes certified for children, the
definitions of abuse described in ORS 419B.005 and OAR 407-045-0260 shall
apply.

(6) PROHIBITION AGAINST RETALIATION. The agency may not
retaliate against any agency staff member, subcontractor including respite
providers and volunteers, or proctor providers that report in good faith
suspected abuse, or retaliate against the individual, with respect to any
report. An accused person may not self-report solely for the purpose of
claiming retaliation.

(a) Any community facility, community program, or
person that retaliates against any person because of a report of suspected
abuse or neglect shall be liable according to ORS 430.755, in a private action
to that person for actual damages and, in addition, shall be subject to a
penalty up to $1000, notwithstanding any other remedy provided by law.

(b) Any adverse action is evidence of retaliation if
taken within 90 days of a report of abuse. For purposes of this subsection,
“adverse action” means any action taken by a community facility, community
program, or person involved in a report against the person making the report or
against the individual because of the report and includes but is not limited
to:

(A) Discharge or transfer from the program, except for
clinical reasons;

(B) Discharge from or termination of employment;

(C) Demotion or reduction in remuneration for services;
or

(D) Restriction or prohibition of access to the program
or the individuals served by the program.

(7) RESPONSIBILITIES OF PROCTOR AGENCY. The proctor
agency must:

(a) Implement policies and procedures to assure
support, health, safety, and crisis response for individuals served, including
policies and procedures to assure necessary training of agency staff and
proctor providers.

(b) Implement policies and procedures to assure that
provider payment and agency support is commensurate to the support needs of
individuals enrolled in the proctor care services. Policies and procedures must
include frequency of review.

(c) Implement policies and procedures to assure
support, health, safety, and crisis response for individuals placed in all
types of respite care, including policies and procedures to assure training of
respite care providers. The types of respite care include but are not limited
to:

(A) Respite care in the proctor provider’s home during
day hours only;

(B) Respite care in the home of someone other than the
proctor provider for day time only;

(C) Overnight care in the proctor provider’s home; and

(D) Overnight care at someone other than the proctor
provider’s home.

(d) Implement policies and procedures to assure
confidentiality of individuals in service and of family information.

(e) Implement policies and procedures to review and
document that each child enrolled in proctor care services continues to require
such services. Policies and procedures must include frequency of review and the
criteria as listed below.

(A) The child’s need for a formal Behavior Support Plan
based on the Risk Tracking Record and functional assessment of the behavior.

(B) The child has been stable and generally free of
serious behavioral or delinquency incidents for the past 12 months.

(C) The child has been free of psychiatric
hospitalization (hospital psychiatric unit, Oregon State Hospital, and sub
acute) for the last 12 months, except for assessment and evaluation.

(D) The child poses no significant risk to self or
community.

(E) The proctor provider has not needed or utilized the
agency crisis services in response to the child’s medical, mental health, or
behavioral needs more than one time in the past 12 months.

(F) The proctor provider is successfully supporting the
child over time, with a minimum of agency case management contact other than
periodic monitoring and check in.

(G) The proctor provider does not require professional
support for the child, and there has been or could be a reduction in ongoing
weekly professional support for the child including consultation, skill
training, and staffing.

(H) The proctor agency is not actively working with the
child’s family to return the child to the family home.

(f) ADULTS IN PROCTOR SERVICES. Implement policies and
procedures where the ISP Team evaluates annually the adult individual’s support
needs and need for proctor services.

(g) Assure that preliminary certification or licensing
activities (whichever is appropriate) are completed per the relevant foster
care statutes and OAR chapter 411, divisions 346 or 360. Such work must be
submitted to the Division for final review and approval.

(h) Complete an initial home study for all proctor
provider applicants that are updated at the certification renewal for all
licensed or certified proctor providers.

(i) Provide and document training and support to agency
staff, proctor providers, subcontractors, volunteers, and respite providers to
maintain the health and safety of the individuals served.

(j) Provide and document training and support to the
agency staff, proctor providers, subcontractors, volunteers, and respite
providers to implement the ISP process, including completion of a Risk Tracking
Record, development of protocols and BSP for each individual served, and the
development of the ISP.

(k) Have a plan for emergency back-up for home provider
including but not limited to use of crisis respite, other proctor homes,
additional staffing, and behavior support consultations.

(l) Coordinate and document entries, exits, and
transfers.

(m) Report to the Division, and the CDDP, any placement
changes due to a Crisis Plan made outside of normal working hours. Notification
must be made by 9:00 a.m. of the first working day after the change has
happened.

(n) Assure that each proctor provider has a current
Emergency Disaster Plan on file in the proctor provider home, in the agency
office, and provided to the CDDP and any case manager of an individual who is
not an employee of the local CDDP.

(o) Assure emergency backup in the event the proctor
provider is unavailable.

(8) GENERAL REQUIREMENTS FOR SAFETY AND TRAINING. All
volunteers having contact with the individual, proctor providers, substitute
caregivers, respite providers, child care providers, and agency staff, except
for those providing services in a crisis situation, must:

(a) Receive training specific to the individual. This
training must at a minimum consist of basic information on environment, health,
safety, ADLs, positive behavioral supports, and behavioral needs for the
individual, including the ISP, BSP, required protocols, and any emergency
procedures. Training must include required documentation for health, safety,
and behavioral needs of the individual.

(b) Receive OIS training. OIS certification is required
if physical intervention is likely to occur as part of the BSP. Knowledge of
OIS principles, not certification is required if it is unlikely that physical
intervention shall be required.

(c) Receive mandatory reporter training.

(d) Receive confidentiality training.

(e) Be at least 18 years of age and have a valid social
security card.

(f) Be cleared by the Department’s criminal records
check requirements.

(g) Have a valid Oregon driver’s license and proof of
insurance.

(h) Receive training in applicable agency policies and
procedures.

(9) In addition to the above general requirements, the
following requirements must be met for each specific provider classification as
listed below.

(a) PROCTOR PROVIDERS:

(A) Must receive and maintain current First Aid and CPR
training.

(B) Must have knowledge of these rules and OAR
divisions 346 or 360 as appropriate to their license or certificate.

(b) SKILLS TRAINERS, ADVISORS, OR OTHER AGENCY STAFF:

(A) Must receive and maintain current First Aid and CPR
training.

(B) Must have knowledge of these rules and OAR
divisions 346 or 360.

(C) Anyone age 18 or older, living in an agency staff
persons uncertified home must have an approved Department criminal records
check per OAR 407-007-0200 to 407-007-0370 and as described in section (4) of
this rule, prior to any visit of an individual to the staff person’s home.

(D) Must assure health and safety guidelines for
alternative caregivers including but not limited to the following:

(i) The home and premises must be free from objects,
materials, pets, and conditions that constitute a danger to the occupants and
the home and premises must be clean and in good repair.

(ii) Any sleeping room used for an individual in
respite must be finished, attached to the house, and not a common living area,
closet, storage area, or garage. If a child is staying overnight, the sleeping
arrangements must be safe and appropriate to the individual’s age, behavior,
and support needs.

(iii) The home must have tubs or showers, toilets, and
sinks that are operable and in good repair with hot and cold water.

(iv) The alternative caregivers must have access to a
working telephone in the home, and must have a list of emergency telephone
numbers and know where the numbers are located.

(v) All medications, poisonous chemicals, and cleaning
materials must be stored in a way that prevents the individuals from accessing
them, unless otherwise addressed in an individual’s ISP.

(vi) Firearms must be stored unloaded. Firearms and
ammunition must be stored in separate locked locations. Loaded firearms must
never be carried in any vehicle while it is being used to transport an
individual.

(vii) First aid supplies must be available in the home
and in the vehicles that shall be used to transport an individual.

(c) RESPITE PROVIDERS.

(A) IN PROCTOR PROVIDER HOME – DAY OR NIGHT:

(i) Must be trained on basic health needs of the
individuals in service.

(ii) Must be trained on basic safety in the home
including but not limited to first aid supplies, the Emergency Plan, and the
Fire Evacuation Plan.

(B) IN OTHER THAN PROCTOR PROVIDER HOME – DAY OR
NIGHT. Must assure health and safety guidelines for alternative caregivers,
including but not limited to:

(i) The home and premises must be free from objects,
materials, pets, and conditions that constitute a danger to the occupants and
the home and premises must be clean and in good repair.

(ii) Any sleeping room used for an individual in
respite must be finished, have a window that may be opened, be attached to the
house, and not a common living area, storage area, closet, or garage. If the
individual is staying overnight, the sleeping arrangements must be safe and
appropriate to the individual’s age, behavior, and support needs.

(iii) The home must have tubs or showers, toilets, and
sinks that are operable and in good repair with hot and cold water.

(iv) The alternative caregivers must have access to a
working telephone in the home and must have a list of emergency telephone
numbers and know where the numbers are located.

(v) All medications, poisonous chemicals, and cleaning
materials must be stored in a way that prevents an individual from accessing
them.

(vi) Firearms must be stored unloaded. Firearms and
ammunition must be stored in separate locked locations. Loaded firearms must
never be carried in any vehicle while it is being used to transport an
individual.

(vii) First aid supplies must be available in the home
and in the vehicles that shall be used to transport individuals.

(d) ALTERNATE CAREGIVERS.

(A) DAY CARE, CAMP:

(i) When a child is cared for by a child care provider,
camp, or child care center, the proctor agency must assure that the camp,
provider home, or center is certified, licensed, or registered as required by
the Child Care Division (ORS 657A.280). The agency must also assure that the
ISP team is in agreement with the plan for the child to attend the camp, child
care center, or child care provider home.

(ii) Adults participating in employment or alternatives
to employment must have such services addressed in their ISP. Any camping or
alternative day service experience must be addressed in the ISP and approved by
the ISP team.

(B) SOCIAL ACTIVITIES FOR LESS THAN 24 HOURS, INCLUDING
OVERNIGHT ARRANGEMENTS:

(i) The proctor agency must assure the person providing
care is capable of assuming all care responsibilities and shall be present at
all times.

(ii) The proctor agency must assure that the ISP team
is in agreement with the planned social activity.

(iii) The proctor agency must assure that the proctor
provider maintains back-up responsibilities for the person in service.

(B) Have initial and annual approval to work based on
current Department policies and procedures for review of criminal records check
per OAR 407-007-0200 to 407-007-0370 and as described in section (4) of this
rule, prior to supervising any individual. Providers serving children must also
have a child welfare check completed on an annual basis.

(C) Upon placement of the individual, have knowledge of
the individual’s needs. This knowledge must consist of basic information on
health, safety, ADLs, and behavioral needs for the individual, including the
ISP, BSP, and required protocols. Training for the provider must include
information on required documentation for health, safety, and behavioral needs
of the individual.

(b) The agency must:

(A) Make follow-up contact with the crisis providers
within 24 hours of the placement to assess and assure the individual’s and
provider’s support needs are met.

(B) Initiate transition planning with the ISP team and
document the plan within 72 hours.

(11) MANDATORY ABUSE REPORTING PERSONNEL POLICIES AND
PROCEDURES. Proctor agency staff and caregivers are mandatory reporters. Upon
reasonable cause to believe that abuse has occurred, all members of the
household and any proctor providers, substitute caregivers, agency employees,
independent contractors, or volunteers must report pertinent information to the
Department, the CDDP, or law enforcement. For reporting purposes the following
shall apply:

(a) Notification of mandatory reporting status must be
made at least annually to all proctor providers, agency employees, substitute
caregivers, subcontractors, and volunteers, on forms provided by the
Department.

(b) All agency employees and proctor providers must be
provided with a Department produced card regarding abuse reporting status and
abuse reporting requirements.

(12) DIRECTOR QUALIFICATIONS. The proctor agency must
be operated under the supervision of a Director who has a minimum of a
bachelor’s degree and two years of experience, including supervision, in
developmental disabilities, mental health, rehabilitation, social services, or
a related field. Six years of experience in the identified fields may be
substituted for a degree.

(13) QUALIFICATIONS FOR PROCTOR AGENCY STAFF AND
PROCTOR PROVIDERS INCLUDING SUBCONTRACTORS AND VOLUNTEERS. Any agency staff
including skill trainers, respite providers, substitute caregivers,
subcontractors, and volunteers must meet the following criteria:

(a) Be at least 18 years of age and have a valid social
security card.

(b) Have approval to work based on Department policies
and a criminal records check completed by the Department as described in
section (4) of this rule.

(c) Disclosed any founded reports of child abuse or
substantiated abuse.

(d) Be literate and capable of understanding written
and oral orders, be able to communicate with individual’s physicians, services
coordinators, and appropriate others, and be able to respond to emergency
situations at all times.

(e) Have met the basic qualification in the agency’s
Competency Based Training Plan.

(f) Meet any additional qualifications specified for
substitute caregivers in OAR 411-360-0110 and OAR 411-360-0120 if working in a
home licensed as an adult foster home for individuals with developmental
disabilities.

(14) PERSONNEL FILES AND QUALIFICATION RECORDS. The
agency must maintain clear, written, signed, and up-to-date job descriptions
and respite agreements when applicable, as well as a file available to the
Department or CDDP for inspection that includes written documentation of the
following for each agency employee:

(a) Written documentation that references and
qualifications were checked.

(b) Written documentation of an approved criminal
records check by the Department as required by OAR 407-007-0200 to
407-007-0370.

(c) Written documentation of employees’ notification of
mandatory abuse training and reporter status prior to supervising individuals
and annually thereafter.

(d) Written documentation of any founded reports of
child abuse or substantiated abuse.

(e) Written documentation kept current that the agency
staff person has demonstrated competency in areas identified by the agency’s
Competency Based Training Plan as required by Oregon’s Core Competencies
defined in OAR 411-335-0020 and that is appropriate to their job description.

(a) Be prepared at the time, or immediately following
the event being recorded.

(b) Be accurate and contain no willful falsification.

(c) Be legible, dated, and signed by the person making
the entry.

(d) Be maintained for no less than five years.

(e) Be made readily available for the purposes of
inspection.

(16) DISSOLUTION OF AGENCY. Prior to the dissolution of
an agency, a representative of the governing body or owner of the agency must
notify the Division 30 days in advance in writing and make appropriate
arrangement for the transfer of individual’s records.

(1) No person, agency, or governmental unit acting
individually or jointly with any other person, agency, or governmental unit
shall establish, conduct, maintain, manage, or operate Department funded
proctor services in proctor provider homes for individuals with developmental
disabilities without being certified by the Department for each home or
facility.

(2) No certificate is transferable or applicable to any
other agency, management agent, or ownership other than that indicated on the
application and certificate.

(3) The Department shall issue a certificate to an
agency found to be in compliance with these rules. A certificate issued on or
before February 1, 2009 shall be valid for five years unless revoked or
suspended.

(4) Any home managed and contracted to serve children
with developmental disabilities by a proctor care agency under this certificate
must be certified by the Department in accordance with the Division’s rules for
children’s foster provider homes: OAR chapter 411, division 346.

(5) Any home managed and contracted to serve adults
with developmental disabilities must be licensed as an adult foster home for
adults with developmental disabilities (AFH-DD) in accordance with OAR chapter
411, division 360.

(a) Information on the application or initial
inspection requires a condition to protect the health and safety of
individuals;

(b) There exists a threat to the health, safety, and
welfare of individuals;

(c) There is reliable evidence of abuse, neglect, or
exploitation;

(d) The home or agency is not being operated in
compliance with these rules; or

(e) The proctor provider is certified to care for a
specific person only and further placements may not be made into that home or
facility.

(2) Conditions that may be imposed on a certificate
include but are not limited to:

(a) Restricting the total number of individuals;

(b) Restricting the number and support level of
individuals allowed within a certified classification level based upon the
capacity of the proctor provider and agency staff to meet the health and safety
needs of all individuals;

(3) The agency shall be notified in writing of any
conditions imposed, the reason for the conditions, and be given an opportunity
to request a hearing under ORS 183.310 to 183.502.

(4) In addition to, or in lieu of, a contested case
hearing, an agency may request a review by the Administrator or designee of
conditions imposed by the Department. The review does not diminish the agency’s
right to a hearing.

(5) Conditions may be imposed for the duration of the
certificate period (five years) or limited to some other shorter period of
time. If the condition corresponds to the certification period, the reasons for
the condition shall be considered at the time of renewal to determine if the
conditions are still appropriate. The effective date and expiration date of the
condition shall be indicated on an attachment to the certificate.

(1) No person or governmental unit acting individually
or jointly with any other person or governmental unit shall establish, conduct,
maintain, manage, or operate an employment or alternative to employment service
without being certified.

(2) Each certificate is issued only for the employment
or alternative to employment service and persons or governmental units named in
the application. No certificate is transferable or assignable.

(3) A certificate issued on or after February 1, 2008
shall be valid for a maximum of five years unless revoked or suspended.

(4) As part of the certificate renewal process the
service provider must conduct a self-evaluation based upon the requirements of
this rule.

(a) The service provider must document the
self-assessment on forms provided by the Department;

(b) The service provider must develop and implement a
plan of improvement based upon the findings of the self-evaluation; and

(c) The service provider must submit these documents to
the local CDDP with a copy to the Department.

(5) The Department shall conduct a review of the
service provider prior to the issuance of a certificate.

(1) NONDISCRIMINATION. The service must comply with all
applicable state and federal statutes, rules, and regulations in regard to
nondiscrimination in employment practices.

(2) PROHIBITION AGAINST RETALIATION. A community
program or service provider may not retaliate against any staff that reports in
good faith suspected abuse or retaliate against the individual with respect to
any report. An accused person may not self-report solely for the purpose of
claiming retaliation.

(a) Any community facility, community program, or
person that retaliates against any person because of a report of suspected
abuse or neglect shall be liable according to ORS 430.755, in a private action
to that person for actual damages and, in addition, shall be subject to a
penalty up to $1000, notwithstanding any other remedy provided by law.

(b) Any adverse action is evidence of retaliation if
taken within 90 days of a report of abuse. Adverse action means only those
actions arising solely from the filing of an abuse report. For purposes of this
subsection, “adverse action” means any action taken by a community facility,
community program, or person involved in a report against the person making the
report or against the adult because of the report and includes but is not
limited to:

(A) Discharge or transfer from the community program,
except for clinical reasons;

(B) Discharge from or termination of employment;

(C) Demotion or reduction in remuneration for services;
or

(D) Restriction or prohibition of access to the
community program or the individuals served by the program.

(a) Be prepared at the time, or immediately following
the event being recorded;

(b) Be accurate and contain no willful falsifications;

(c) Be legible, dated, and signed by the person making
the entry; and

(d) Be maintained for no less than five years.

(4) PROVIDER SERVICE PAYMENT LIMITATION.

(a) Effective February 1, 2010, monthly service rates,
as authorized in Division payment and reporting systems for individuals
enrolled in employment and alternatives to employment services and paid to
certified providers for delivering employment or alternatives to employment
services as described in these rules, shall be limited to a maximum of $1,800
per month.

(b) An exception to the provider service payment
limitation, only for costs of directly supporting the individual served, may be
granted by the Division if documentation supports the following criteria are
met:

(A) The individual has a current behavior or health
condition, as well as a documented history of such, posing a risk to the
individual’s health and welfare or that of others; AND

(B) The individual has a current employment and
alternatives to employment service rate and ISP requiring at least 1:1 staffing
for purposes of meeting behavioral or medical support needs; AND

(C) Steps have been taken to address the existing
behavior or condition within the $1,800 cap and there is continued risk to
health and safety of self or others, regardless of setting.

(c) Special conditions shall be required in the
provider contract. The Division or the Division’s designee shall monitor
services to assure their delivery and the continued need for additional funds.

(5) INDEPENDENCE, PRODUCTIVITY, AND INTEGRATION. As
stated in ORS 427.007 the service must have a written policy that states that
each individual’s ISP is developed to meet each of the following:

(a) Employment and activities that address each
individual’s level of independence;

(b) Employment and activities that address each
individual’s productivity; and

(c) Employment and activities that address each
individual’s integration into the local community.

(6) DISSOLUTION OF SERVICE. Prior to the dissolution of
a service, a representative of the governing body or owner of the service must
notify the Department in writing 30 days in advance and make appropriate
arrangements for the transfer of individual records.

(1) COMMUNITY BASED SERVICES. All supported employment
and community based services must ensure that the site has no known health or
safety hazards in its immediate environment and that individuals are trained to
avoid recognizable hazards.

(2) OWNED, LEASED, OR RENTED BUILDINGS AND PROPERTY.
The service must assure that at least once every five years, a health and
safety inspection is conducted.

(a) The inspection must cover all areas and buildings
where services are delivered to individuals, administrative offices, and
storage areas.

(b) The inspection may be performed by:

(A) Oregon Occupational Safety and Health Division;

(B) The service’s workers compensation insurance
carrier; or

(C) An appropriate expert such as a licensed safety
engineer or consultant as approved the Department; and

(D) The Oregon Health Department, when necessary.

(c) The inspection must cover:

(A) Hazardous material handling and storage;

(B) Machinery and equipment used by the service;

(C) Safety equipment;

(D) Physical environment; and

(E) Food handling, when necessary.

(d) The documented results of the inspection, including
recommended modifications or changes, and documentation of any resulting action
taken must be kept by the provider for five years.

(3) FIRE AND LIFE SAFETY INSPECTIONS FOR OWNED, LEASED,
OR RENTED BUILDINGS AND PROPERTY. The service provider must ensure that each
service site has annual fire and life safety inspections performed by the local
fire authority or a Deputy State Fire Marshal. The documented results of the
inspection, including documentation of recommended modifications or changes,
and documentation of any resulting action taken must be kept by the provider
for five years.

Subject: In response to legislatively required budget
reductions effective October 1, 2010, the Department of Human Services (DHS),
Seniors and People with Disabilities Division (SPD) is temporarily amending
various rules relating to foster homes for children with developmental
disabilities (CFH-DD) in OAR chapter 411, division 346 to change the annual
certification period to two years. Language associated with the certification
timeframe and provider expectations for chimney inspection, emergency
preparedness, and inactive referral status have also been changed to comply
with the two year cycle.

Rules Coordinator: Christina Hartman—(503) 945-6398

411-346-0110

Definitions

(1) “Abuse” means:

(a) Abuse of a child under the age of 18 as defined in
ORS 419B.005; and

(b) Abuse of an adult as defined in OAR 407-045-0260
when an individual between the ages of 18 and 21 resides in a certified child
foster home.

(2) “Alternate Caregiver” means any person 18 and older
responsible for the care or supervision of a child in foster care.

(3) “Alternative Educational Plan (AEP)” means any
school plan that does not occur within the physical school setting.

(4) “Appeal” means the process for a contested hearing
under ORS chapter 183 that the foster provider may use to petition the
suspension, denial, non-renewal, or revocation of their certificate or
application.

(5) “Applicant” means a person who wants to become a
child foster provider, lives at the residence where a child in foster care
shall live, and is applying for a child foster home certificate or is renewing
a child foster home certificate.

(6) “Assistant Director” means the assistant director
of the Division, or that person’s designee.

(7) “Aversive Stimuli” means the use of any natural or
chemical product to alter a child’s behavior such as the use of hot sauce or
soap in the mouth and spraying ammonia or lemon water in the face of a child.
Psychotropic medications are not considered aversive stimuli.

(8) “Behavior Supports” means a positive training plan
used by the foster provider and alternate caregivers to help a child in foster
care develop the self control and self direction necessary to assume
responsibilities, make daily living decisions, and learn to conduct themselves
in a manner that is socially acceptable.

(9) “Case Plan” means the goal-oriented, time-limited,
individualized plan of action for a child and the child’s family developed by
the child’s family and the Department’s Children, Adults, and Families Division
for promotion of the child’s safety, permanency, and well being.

(11) “Certificate” means a document issued by the
Division that notes approval to operate a child foster home for a period not to
exceed two years.

(12) “Certifier” or “Certifying Agency” means the
Division, Community Developmental Disability Program, or an agency approved by
the Division who is authorized to gather required documentation to issue or
maintain a child foster home certificate.

(13) “Child” means:

(a) An individual under the age of 18 who has a
provisional eligibility determination of developmental disability by the
Community Developmental Disability Program; or

(b) A young adult age 18 through 21 who is remaining in
the same foster home for the purpose of completing their Individualized
Education Plan, based on their Individual Support Plan team recommendation and
an approved certification variance.

(14) “Child Foster Home (CFH)” means a home certified by
the Division that is maintained and lived in by the person named on the foster
home certificate.

(15) “Child Foster Home Contract” means an agreement
between a provider and the Department that describes the responsibility of the
foster care provider and the Department.

(17) “Commercial Basis” means providing and receiving
compensation for the temporary care of individuals not identified as members of
the household.

(18) “Community Developmental Disability Program
(CDDP)” means an entity that is responsible for planning and delivery of
services for individuals with developmental disabilities in a specific
geographic service area of the state operated by or under a contract with the
Division or a local mental health authority.

(19) “Denial” means the refusal of the certifying
agency to issue a certificate of approval to operate a child foster home
because the certifying agency has determined that the home or the applicant is
not in compliance with one or more of these rules.

(20) “Department” means the Department of Human
Services (DHS).

(21) “Developmental Disability (DD)” means a disability
that originates in the developmental years, that is likely to continue, and
significantly impacts adaptive behavior as diagnosed and measured by a
qualified professional. Developmental disabilities include mental retardation,
autism, cerebral palsy, epilepsy, or other neurological disabling conditions
that require training or support similar to that required by individuals with
mental retardation, and the disability:

(a) Originates before the individual reaches the age of
22 years, except that in the case of mental retardation, the condition must be
manifested before the age of 18;

(b) Originates and directly affects the brain and has
continued, or must be expected to continue, indefinitely;

(22) “DHS-CW” means the child welfare program area
within the Department’s Children, Adults, and Families Division.

(23) “Direct Nursing Services” means the provision of
individual-specific advice, plans, or interventions, based on nursing process
as outlined by the Oregon State Board of Nursing, by a nurse at the home or
facility. Direct nursing service differs from administrative nursing services.
Administrative nursing services include non-individual-specific services, such
as quality assurance reviews, authoring health related agency policies and
procedures, or providing general training for the foster provider or alternate
caregivers.

(24) “Discipline” for the purpose of these rules,
discipline is synonymous with behavior supports.

(25) “Division” means the Department of Human Services,
Seniors and People with Disabilities Division (SPD).

(26) “Domestic Animals” mean any various animals
domesticated so as to live and breed in a tame condition. Examples of domestic
animals are dogs, cats, and domesticated farm stock.

(27) “Educational Surrogate” means a person who acts in
place of a parent in safeguarding a child’s rights in the special education
decision-making process:

(a) When the parent cannot be identified or located
after reasonable efforts;

(b) When there is reasonable cause to believe that the
child has a disability and is a ward of the state; or

(29) “Foster Care” means a child is placed away from
their parent or guardian in a certified child foster home.

(30) “Foster Provider” means the certified care
provider who resides at the address listed on the foster home certificate. For
the purpose of these rules, “foster provider” is synonymous with child foster
parent or relative caregiver and is considered a private agency for purposes of
mandatory reporting of abuse.

(31) “Founded Reports” means the Department’s Children,
Adults, and Families Division or Law Enforcement Authority (LEA) determination,
based on the evidence, that there is reasonable cause to believe that conduct
in violation of the child abuse statutes or rules has occurred and such conduct
is attributable to the person alleged to have engaged in the conduct.

(32) “Guardian” means a parent for individuals less
than 18 years of age or a person or agency appointed and authorized by an
Oregon court to make decisions about services for an individual in foster care.

(33) “Health Care Provider” means a person or health
care facility licensed, certified, or otherwise authorized or permitted by
Oregon law to administer health care in the ordinary course of business or
practice of a profession.

(34) “Home Inspection” means an on-site, physical
review of the applicant’s home to assure the applicant meets all health and
safety requirements within these rules.

(35) “Home Study” means the assessment process used for
the purpose of determining an applicant’s abilities to care for a child in need
of foster care placement.

(36) “Incident Report” means a written report of any
unusual incident involving the child in foster care.

(37) “Individualized Education Plan (IEP)” means a
written plan of instructional goals and objectives in conference with the
teacher, parent or guardian, student, and a representative of the school
district.

(38) “Individual Support Plan (ISP)” means the written
details of the supports, activities, and resources required to meet the health,
safety, financial, and personal goals of the child in foster care. The
Individual Support Plan is the child’s plan of care for Medicaid purposes.

(39) “Individual Support Plan (ISP) Team” means a team
composed of:

(a) The child in foster care when appropriate;

(b) The foster provider;

(c) The guardian;

(d) The Community Developmental Disability Program
services coordinator; and

(e) May include family or any other approved persons
who are approved by the child and the child’s guardian to develop the
Individual Support Plan.

(a) For the purposes of this rule, is a foster
provider, staff, or volunteer working with individuals birth to 17 years of
age, and comes in contact with and has reasonable cause to believe a child has
suffered abuse, or comes in contact with any person whom the official has
reasonable cause to believe abused a child, regardless of whether or not the
knowledge of the abuse was gained in the reporter’s official capacity. Nothing
contained in ORS 40.225 to 40.295 shall affect the duty to report imposed by
this section, except that a psychiatrist, psychologist, clergyman, attorney, or
guardian ad litem appointed under ORS 419B.231 shall not be required to report
such information communicated by a person if the communication is privileged
under ORS 40.225 to 40.295.

(b) For the purposes of this rule, is a foster
provider, staff, or volunteer working with individuals 18 years and older, and
while acting in an official capacity, comes in contact with and has reasonable
cause to believe an adult with developmental disabilities has suffered abuse,
or comes in contact with any person whom the official has reasonable cause to
believe abused an adult with developmental disabilities. Pursuant to ORS
430.765(2) psychiatrists, psychologists, clergy, and attorneys are not
mandatory reporters with regard to information received through communications
that are privileged under ORS 40.225 to 40.295.

(42) “Mechanical Restraint” means any mechanical
device, material, object, or equipment that is attached or adjacent to an individual’s
body that the individual cannot easily remove or easily negotiate around that
restricts freedom of movement or access to the individual’s body.

(43) “Member of the Household” means any adults and
children living in the home, including any employees or volunteers assisting in
the care provided to a child placed in the home. For the purpose of these
rules, a child in foster care is not considered a member of the household.

(44) “Mental Health Assessment” means the determination
of a child’s need for mental health services by interviewing the child and
obtaining all pertinent biopsychosocial information, as identified by the
individual, family, and collateral sources that:

(a) Addresses the current complaint or condition
presented by the child;

(45) “Misuse of Funds” includes but is not limited to
providers or their staff:

(a) Borrowing from or loaning money to a child in
foster care;

(b) Witnessing a will in which the provider or a staff
is a beneficiary;

(c) Adding the provider’s name to an individual’s bank
account or other titles for personal property without approval of the
individual, when of age to give legal consent, or the individual’s legal
representative and authorization of the Individual Support Plan team;

(d) Inappropriately expending or theft of an
individual’s personal funds;

(e) Using an individual’s personal funds for the
provider’s or staff’s own benefit; or

(f) Commingling an individual’s funds with provider or
another individual’s funds.

(46) “Monitoring” means the observation by the
Division, or designee, of a certified child foster home to determine continuing
compliance with these rules.

(47) “Nurse” means a person who holds a current license
from the Oregon Board of Nursing as a registered nurse (RN) or licensed
practical nurse (LPN).

(48) “Nursing Care Plan” means a plan of care developed
by a registered nurse that describes the medical, nursing, psychosocial, and
other needs of the individual and how those needs shall be met. The Nursing
Care Plan includes which tasks shall be taught or delegated to the foster
provider and alternate caregivers.

(49) “Occupant” means any person having official
residence in a certified child foster home.

(50) “Oregon Intervention System (OIS)” means a system
of providing training to people who work with designated individuals to
intervene physically or non-physically to keep individuals from harming self or
others. The Oregon Intervention System is based on a proactive approach that
includes methods of effective evasion, deflection, and escape from holding.

(51) “Oregon Youth Authority (OYA)” means an agency
that has been given commitment and supervision responsibilities over those
youth offenders, by order of the juvenile court under ORS 137.124 or other
statute, until the time that a lawful release authority authorizes release or
terminates the commitment or placement.

(52) “Permanent Foster Care” means a long term
contractual agreement between the foster parent and the Department’s Children,
Adults, and Families Division, approved by the juvenile court that specifies
the responsibilities and authority of the foster parent and the commitment by
the permanent foster parent to raise a child until the age of majority or until
the court determines that permanent foster care is no longer the appropriate
plan for the child.

(53) “Protected Health Information” means any oral or
written health information that identifies the child and relates to the child’s
past, present, or future physical or mental health condition, health care
treatment, or payment for health care treatment.

(54) “Protective Physical Intervention” means:

(a) Any manual physical holding of or contact with a
child that restricts the child’s freedom of movement; and

(b) The use of any physical action to maintain the
health and safety of a child or others during a potentially dangerous situation
or event.

(55) “Psychotropic Medication” means medication the
prescribed intent of which is to affect or alter thought processes, mood, or
behavior including but not limited to anti-psychotic, antidepressant,
anxiolytic (anti-anxiety), and behavior medications. The classification of a
medication depends upon its stated, intended effect when prescribed.

(56) “Qualified Mental Health Professional” means a
person who meets both of the following:

(a) Holds at least one of the following educational
degrees:

(A) Graduate degree in psychology;

(B) Bachelor’s degree in nursing and licensed in Oregon;

(C) Graduate degree in social work;

(D) Graduate degree in a behavioral science field;

(E) Graduate degree in recreational, art, or music
therapy;

(F) Bachelor’s degree in occupational therapy and
licensed in Oregon; and

(H) Provide individual, family, or group therapy within
the scope of his or her practice.

(57) “Respite” means intermittent services provided on
a periodic basis, but not more than 14 consecutive days, for the relief of, or
due to the temporary absence of, persons normally providing the supports to
individuals unable to care for themselves.

(58) “Revocation” means the action taken by the
certifying agency to rescind a child foster home certificate of approval after
determining that the child foster home is not in compliance with one or more of
these rules.

(59) “Services Coordinator” means an employee of the
Community Developmental Disability Program or the Division, who is selected to
plan, procure, coordinate, monitor Individual Support Plan services, and to act
as a proponent for individuals with developmental disabilities.

(60) “Significant Medical Needs” means but is not
limited to total assistance required for all activities of daily living such as
access to food or fluids, daily hygiene which is not attributable to the
child’s chronological age, and frequent medical interventions required by the
care plan for health and safety of the child.

(61) “Specialized Diet” means that the amount, type of
ingredients, or selection of food or drink items is limited, restricted, or
otherwise regulated under a physician’s order. Examples include but are not
limited to low calorie, high fiber, diabetic, low salt, lactose free, or low
fat diets.

(62) “Substantiated” means an abuse investigation has
been completed by the Department or the Department’s designee and the
preponderance of the evidence establishes the abuse occurred.

(63) “Suspension of Certificate” means a temporary
withdrawal of the approval to operate a child foster home after the certifying
agency determines that the child foster home is not in compliance with one or
more of these rules.

(64) “These Rules” mean the rules in OAR chapter 411,
division 346.

(65) “Unauthorized Absence” means any length of time
when a child is absent from the foster home without prior approval as specified
on the Individual Support Plan.

(66) “Unusual Incident” means incidents involving
serious illness or accidents, death of an individual, injury or illness of an
individual requiring inpatient or emergency hospitalization, suicide attempts,
a fire requiring the services of a fire department, an act of physical
aggression, or any incident requiring an abuse investigation.

(1) The applicant or foster provider must participate
in certification and certification renewal studies and in the ongoing
monitoring of their homes.

(2) The applicant or foster provider must give the
information required by the Division to verify compliance with all applicable
rules, including change of address and change of number of persons in the
household such as relatives, employees, or volunteers.

(3) The applicant seeking certification from the
Division must complete the Division application forms. When two or more adults
living in the home share foster provider responsibilities to any degree, they
must be listed on the application as applicant and co-applicant.

(4) The applicant must disclose each state or territory
they have lived in the last five years and for a longer period if requested by
the certifier. The disclosure must include the address, city, state, and zip
code of previous residences.

(5) Information provided by the applicants must
include:

(a) Names and addresses of any agencies in the United
States where any occupant of the home has been licensed or certified to provide
care to children or adults and the status of such license or certification.
This may include but is not limited to licenses or certificates for residential
care, nurse, nurse’s aide, and foster care;

(b) Proposed number, gender, age range, disability, and
support needs of children to be served in foster care;

(c) School reports for any child of school age living
in the home at the time of initial application. School reports for any child of
school age living in the home within the last year may also be required;

(d) Names and addresses of at least four persons, three
of whom are unrelated, who have known each applicant for two years or more and
who can attest to their character and ability to care for children. The
Division may contact schools, employers, adult children, and other sources as
references;

(e) Reports of all criminal charges, arrests or
convictions, the dates of offenses, and the resolution of those charges for all
employees or volunteers and persons living in the home. If the applicant’s
minor children shall be living in the home, the applicants must also list
reports of all criminal or juvenile delinquency charges, arrests or
convictions, the dates of offenses, and the resolution of those charges;

(f) Founded reports of child abuse or substantiated
abuse, with dates, locations, and resolutions of those reports for all persons
living in the home, as well as all applicant or provider employees, independent
contractors, and volunteers;

(h) Demonstration, upon initial certification, of
income sufficient to meet the needs and to ensure the stability and financial
security of the family independent of the foster care payment;

(i) All child support obligations in any state, whether
the obligor is current with payments or in arrears, and whether any applicant’s
or foster provider’s wages are being attached or garnished for any reason;

(j) A physician’s statement, on a form provided by the
Division, that each applicant is physically and mentally capable of providing
care;

(k) A floor plan of the house showing the location of:

(A) Rooms, indicating the bedrooms for the child in
foster care, caregiver, and other occupants of the home;

(B) Windows;

(C) Exit doors;

(D) Smoke detectors and fire extinguishers; and

(E) Wheel chair ramps, if applicable; and

(l) A diagram of the house and property showing safety
devices for fire places, wood stoves, water features, outside structures, and
fencing.

(6) Falsification or omission of any of the information
for certification may be grounds for denial or revocation of the child foster
home certification.

(7) Applicants must be at least 21 years of age.
Applicants who are “Indian,” as defined in the Indian Child Welfare Act, may be
18 years of age or older, if an Indian child to be placed is in the legal
custody of DHS-CW.

(8) Applicants, providers, alternate caregivers,
providers’ employees or volunteers, other occupants in the home who are 18
years or older, and other adults having regular contact in the home with a
child in foster care or any subject individual as described in OAR 407-007-0200
to 407-007-0370 must consent to a criminal records check by the Department, in
accordance with OAR 407-007-0200 to 407-007-0370 (Criminal Records Check Rules)
and under ORS 181.534. The Division may require a criminal records check on
members of the household under 18 if there is reason to believe that a member
may pose a risk to a child placed in the home. All persons subject to a
criminal records check are required to complete an Oregon criminal records
check and a national criminal records check, as described in OAR 407-007-0200
to 407-007-0370, including the use of fingerprint cards.

(a) Effective July 28, 2009, public funds may not be
used to support, in whole or in part, a person described in section (8) of this
rule in any capacity who has been convicted of any of the disqualifying crimes
listed in OAR 407-007-0275.

(b) A person does not meet qualifications as described
in this rule if the person has been convicted of any of the disqualifying
crimes listed in OAR 407-007-0275.

(c) Section (8)(a) and (b) of this rule do not apply to
employees hired prior to July 28, 2009 that remain in the current position for
which the employee was hired.

(d) Any person as described in section (8) of this rule
must self-report any potentially disqualifying condition as described in OAR
407-007-0280 and OAR 407-007-0290. The person must notify the Department or
designee within 24 hours.

(9) The Division may not issue or renew a certificate
if an applicant or member of the household:

(a) Has, after completing the criminal records check
required by the Division, a fitness determination of “denied.”

(b) Has, at any time, been convicted of a felony in
Oregon or any jurisdiction that involves:

(A) Child abuse or neglect;

(B) Spousal abuse;

(C) Criminal activity against children, including child
pornography; or

(D) Rape, sexual assault, or homicide.

(c) Has, within the past five years from the date the
criminal records check was signed been convicted of a felony in Oregon or any
jurisdiction that involves:

(A) Physical assault or battery (other than against a
spouse or child); or

(B) Any drug-related offense.

(d) Has been found to have abused or neglected a child
or adult as defined in ORS 419B.005 or as listed in OAR 407-045-0260.

(e) Has, within the past five years from the date the
child foster home application was signed, been found to have abused or
neglected a child or adult in the United States as defined by that jurisdiction
or any other jurisdiction.

(10) The applicant or foster provider may request to
withdraw their application any time during the certification process by
notifying the certifier in writing. Written documentation by the certifier of
verbal notice may substitute for written notification.

(11) The Division may not issue or renew a certificate
for a minimum of five years if the applicant is found to have a license or
certificate to provide care to children or adults, suspended, revoked, or not
renewed by other than voluntary request. This shall be grounds for suspension
and revocation of the certificate.

(12) The Division may not issue or renew a certificate
based on an evaluation of any negative references, school reports, physician’s
statement, or previous licensing or certification reports from other agencies
or states.

(13) A Department employee may be a foster provider, or
an employee of an agency that contracts with the Department as a foster
provider, if the employee’s position with the Department does not influence
referral, regulation, or funding of such activities. Prior to engaging in such
activity, the employee must obtain written approval from the Assistant Director
of the Division. The written approval must be on file with the Assistant
Director of the Division and in the Division’s certification file.

(14) An application is incomplete and void unless all
supporting materials are submitted to the Division within 90 days from the date
of the application.

(15) An application may not be considered complete
until all required information is received and verified by the Division. Within
60 days upon receipt of the completed application, a decision shall be made by
the Division to approve or deny certification.

(16) The Division shall determine compliance with these
rules based on receipt of the completed application material, an investigation
of information submitted, an inspection of the home, a completed home study,
and a personal interview with the provider. A certificate issued on or after
February 1, 2010 shall be valid for a maximum of two years, unless revoked or
suspended.

(17) The Division may attach conditions to the
certificate that limit, restrict, or specify other criteria for operation of
the child foster home.

(18) A condition may be attached to the certificate
that limits the provider to the care of a specific child. No other referrals
shall be made to a provider with this limitation.

(19) A child foster home certificate is not
transferable or applicable to any location or persons other than those specified
on the certificate.

(20) The foster provider who cares for a child funded
by the Department must enter into a contract with the Department and follow the
Department rules governing reimbursement for services and refunds.

(21) The foster provider may not be the parent or legal
guardian of any child placed in their home for foster care services funded by
the Department.

(22) If the applicant or foster provider intends to
provide care for a child with significant medical needs then at least one provider
or applicant must have the following:

(a) An equivalent of one year of full-time experience
in providing direct care to individuals;

(b) Health care professional qualifications.

(A) Such as a registered nurse (RN) or licensed
practical nurse (LPN); or

(B) Has the equivalent of two additional years
full-time experience providing care and support to an individual who has a
medical condition that is serious and could be life-threatening;

(c) Copies of all current health related license or
certificates and provide those documents to the certifying agent;

(d) Current certification in First Aid and
Cardiopulmonary Resuscitation (CPR). The CPR training must be done by a
recognized training agency and the CPR certificate must be appropriate to the
ages of the child served in the foster home;

(e) Current satisfactory references from at least two
medical professionals, such as a physician and registered nurse, who have
direct knowledge of the applicant’s ability and past experiences as a
caregiver. The medical professional references serve as two of the four
references in section (5)(d) of this rule; and

(f) Positive written recommendation from the Division’s
Medically Fragile Children’s Unit (MFCU) if the provider or applicant has
provided services through the program or if the provider or applicant has
historically received services through the program for a child in their family
home or foster home.

(23) A foster provider may not accept a child with
significant medical needs unless an initial care plan addressing the health and
safety supports is in place at the time of placement.

(1) At least 90 days prior to the expiration of a
certificate, the Division shall send a reminder notice and application for renewal
to the currently certified provider. Submittal of a renewal application prior
to the expiration date keeps the certificate in effect until the Division takes
action. If the renewal application is not submitted prior to the expiration
date, the child foster home shall be treated as an uncertified home.

(2) The certification renewal process includes the
renewal application and the same supporting documentation as required for a new
certification. With the discretion of the certifier, a financial statement,
physician statement, and floor plan may not be required.

(3) Copies of the services coordinator’s monitoring
check list or recommendations from the services coordinators who have had
children in the home within the last year may be requested at time of
certification renewal.

(4) School reports may not be required if the Division
or the certifier reasonably assumes this information has not changed or is not
necessary.

(5) The Division or the certifier may investigate any
information in the renewal application and shall conduct a home inspection.

(6) The provider shall be given a copy of the
inspection form documenting any deficiencies and a time frame to correct
deficiencies. Deficiencies must be corrected no longer than 60 days from the
date of inspection. If documented deficiencies are not corrected within the
time frame specified, the renewal application shall be denied.

(7) Applicants, providers, providers’ substitute
caregivers, employees, volunteers, and any other occupants in the home 18 years
of age and older must submit to an Oregon criminal records check and must
continue to meet all certification standards as outlined in these rules.

(8) Each foster provider must provide documentation of
a minimum of 10 hours of Division approved training per year prior to the
renewal of the certificate. A mutually agreed upon training plan may be part of
the re-certification process.

(9) When serving children with significant medical
needs, the foster provider must have a minimum of six of the ten hours of annual
training requirements in specific medical training beyond First Aid and CPR.
The CPR training must be done by a recognized training agency and the CPR
certificate must be appropriate to the ages of the children served in the
foster home.

(1) An emergency certificate may be issued by the
Division for up to 30 days, provided the following conditions are met:

(a) An Oregon criminal records check indicates no
immediate need for fingerprinting for all persons living in the home;

(b) A DHS-CW background check identifies no founded
reports of child abuse committed by persons living in the home;

(c) Applicant has no previous revocations or
suspensions of any license or certificate by any issuing agency for a foster
home, group home, or any other care or support services;

(d) A review of support enforcement obligations and
public assistance cases identifies no substantial financial concerns;

(e) An application and two references are submitted;

(f) An abbreviated home study is done; and

(g) A satisfactory home inspection and a Health and
Safety Checklist are completed.

(2) When a child with significant medical needs shall
be living in the foster home, the following additional requirements must be met
before an emergency certificate may be issued:

(a) Current satisfactory references from at least two
medical professionals, such as a physician and registered nurse, who have
direct knowledge of the applicant’s ability and past experiences as a
caregiver; AND

(b) A positive written recommendation from the
Division’s Medically Fragile Children’s Unit (MFCU) if the provider or
applicant has provided services through the program or has historically
received services through the program for a child in their family home or
foster home; AND

(c) Current certification in First Aid and CPR. The CPR
training must be done by a recognized training agency and the CPR certificate
must be appropriate to the ages of the children served in the foster home; AND

(d) Copies of all current medical related licenses or
certificates must be provided to the certifier; AND

(e) Six hours of medical training beyond CPR and First
Aid training as appropriate to the ages of the children served in the foster
home; OR

(a) Provide structure and daily activities designed to
promote the physical, social, intellectual, cultural, spiritual, and emotional
development of the child in their home.

(b) Provide playthings and activities in the foster
home, including games, recreational and educational materials, and books
appropriate to the chronological age, culture, and developmental level of the
child.

(c) In accordance with the ISP and if applicable as
defined in the DHS-CW case plan, encourage the child to participate in
community activities with family, friends, and on their own when appropriate.

(d) Promote the child’s independence and
self-sufficiency by encouraging and assisting the child to develop new skills
and perform age-appropriate tasks.

(e) In accordance with the ISP and if applicable as
defined in the DHS-CW case plan, ask the child in foster care to participate in
household chores appropriate to the child’s age and ability that commensurate
with those expected of the provider’s own children.

(f) Provide the child with reasonable access to a telephone
and to writing materials.

(g) In accordance with the ISP and if applicable as
defined in the DHS-CW Case Plan, permit and encourage the child to have visits
with family and friends.

(h) Allow regular contacts and private visits or phone
calls with the child’s CDDP services coordinator and if applicable the DHS-CW
case worker.

(i) Not allow a child in foster care to baby-sit in the
foster home or elsewhere without permission of the child’s CDDP services
coordinator and the guardian.

(2) RELIGIOUS, ETHNIC, AND CULTURAL HERITAGE.

(a) The foster provider must recognize, encourage, and
support the religious beliefs, ethnic heritage, cultural identity, and language
of a child and the child’s family.

(b) In accordance with the ISP and guardian preferences,
the foster provider must participate with the ISP team to arrange
transportation and appropriate supervision during religious services or ethnic
events for a child whose beliefs and practices are different from those of the
provider.

(c) The foster provider may not require a child to
participate in religious activities or ethnic events contrary to the child’s
beliefs.

(3) EDUCATION. The foster provider:

(a) Must enroll each child of school age in public
school, within five school days of the placement, and arrange for
transportation.

(b) Must comply with any Alternative Educational Plan
described in the child’s IEP.

(c) Must be actively involved in the child’s school
program and must participate in the development of the child’s IEP. The foster
provider may apply to be the child’s educational surrogate if requested by the
parent or guardian.

(d) Must consult with school personnel when there are
issues with the child in school and report to the guardian and CDDP services
coordinator any serious situations that may require Department involvement.

(e) Must support the child in his or her school or
educational placement.

(f) Must assure the child regularly attends school or
educational placement and monitor the child’s educational progress.

(g) May sign consent to the following school related
activities:

(A) School field trips within the state of Oregon;

(B) Routine social events;

(C) Sporting events;

(D) Cultural events; and

(E) School pictures for personal use only unless
prohibited by the court or legal guardian.

(4) ALTERNATE CAREGIVERS.

(a) The foster provider must arrange for safe and
responsible alternate care.

(b) A Child Care Plan for a child in foster care must
be approved by the Division, the CDDP, or DHS-CW before it is implemented. When
a child is cared for by a child care provider or child care center, the
provider or center must be certified as required by the State Child Care
Division (ORS 657A.280) or be a certified foster provider.

(c) The foster provider must have a Respite Plan approved
by the certifier or the Division when using alternate caregivers.

(d) The foster provider must assure the alternate
caregivers, consultants, and volunteers are:

(A) 18 years of age or older;

(B) Capable of assuming foster care responsibilities;

(C) Present in the home;

(D) Physically and mentally capable to perform the
duties of the foster provider as described in these rules;

(E) Cleared by a criminal records check as described in
OAR 411-346-0150(8) including a DHS-CW background check;

(F) Able to communicate with the child, individuals,
agencies providing care to the child, CDDP services coordinator, and
appropriate others;

(G) Trained on fire safety and emergency procedures;

(H) Trained on the child’s ISP, Behavior Support Plan,
and any related protocols and able to provide the care needed for the child;

(I) Trained on the required documentation for health,
safety, and behavioral needs of the child;

(J) A licensed driver and with vehicle insurance in
compliance with the Oregon DMV laws when transporting children by motorized
vehicle; and

(K) Not be a person who requires care in a foster care
or group home.

(e) When the foster provider uses an alternate
caregiver and the child shall be staying at the alternate caregiver’s home, the
foster provider must assure the alternate caregiver’s home meets the necessary
health, safety, and environmental needs of the child.

(f) When the foster provider arranges for social
activities of the child for less than 24 hours, including an overnight arrangement,
the foster provider must assure that the person shall be responsible and
capable of assuming child care responsibilities and be present at all times.
The foster provider still maintains primary responsibility for the child.

(5) FOOD AND NUTRITION.

(a) The foster provider must offer three nutritious
meals daily at times consistent with those in the community.

(A) Daily meals must include food from the four basic
food groups, including fresh fruits and vegetables in season, unless otherwise
specified in writing by a physician or physician assistant.

(B) There must be no more than a 14-hour span between
the evening meal and breakfast unless snacks and liquids are served as
supplements.

(C) Consideration must be given to cultural and ethnic
background in food preparation.

(b) Any home canned food used must be processed
according to current guidelines of Oregon State University extension services
(http://extension.oregonstate.edu/fch/food-preservation).

(c) All food items must be used prior to the item’s
expiration date.

(d) The foster provider must implement specialized
diets only as prescribed in writing by the child’s physician or physician
assistant.

(e) The foster provider must prepare and serve meals in
the foster home where the child lives. Payment for meals eaten away from the
foster home (e.g. restaurants) for the convenience of the foster provider is
the responsibility of the foster provider.

(f) The foster provider, when serving milk, must only
use pasteurized liquid or powdered milk for consumption by a child in foster
care.

(g) A child who must be bottle-fed and cannot hold the
bottle, or is 11 months or younger, must be held during bottle-feeding.

(6) CLOTHING AND PERSONAL BELONGINGS.

(a) The foster provider must assure that each child has
his or her own clean, well-fitting, seasonal clothing appropriate to age,
gender, culture, individual needs, and comparable to the community standards.

(b) A school-age child must participate in choosing
their own clothing whenever possible.

(c) The foster provider must allow a child to bring and
acquire appropriate personal belongings.

(d) The foster provider must assure that when a child
leaves the child foster home, the child’s belongings including all personal
funds, medications, and personal items remain with the child. This includes all
items brought with the child and obtained while living in the home.

(7) BEHAVIOR SUPPORT AND DISCIPLINE PRACTICES.

(a) The foster provider must teach and discipline a
child with respect, kindness, and understanding, using positive behavior
management techniques. Unacceptable practices include but are not limited to:

(A) Physical force, spanking, or threat of physical
force inflicted in any manner upon the child;

(B) Verbal abuse, including derogatory remarks about
the child or the child’s family that undermine a child’s self-respect;

(C) Denial of food, clothing, or shelter;

(D) Denial of visits or contacts with family members,
except when otherwise indicated in the ISP or if applicable the DHS-CW case
plan;

(E) Assignment of extremely strenuous exercise or work;

(F) Threatened or unauthorized use of physical
interventions;

(G) Threatened or unauthorized use of mechanical
restraints;

(H) Punishment for bed-wetting or punishment related to
toilet training;

(I) Delegating or permitting punishment of a child by
another child;

(J) Threat of removal from the foster home as a
punishment;

(K) Use of shower or aversive stimuli as punishment;
and

(L) Group discipline for misbehavior of one child.

(b) The foster provider must set clear expectations,
limits, and consequences of behavior in a non-punitive manner.

(c) If time-out separation from others is used to
manage behavior, it must be included on the child’s ISP and the foster provider
must provide it in an unlocked, lighted, well-ventilated room of at least 50
square feet. The ISP must include whether the child needs to be within hearing
distance or within sight of an adult during the time-out. The time limit must
take into consideration the child’s chronological age, emotional condition, and
developmental level. Time-out is to be used for short duration and frequency as
approved by ISP team.

(d) No child in foster care or other child in a foster
home shall be subjected to physical abuse, sexual abuse, sexual exploitation,
neglect, emotional abuse, mental injury, or threats of harm as defined in ORS
419B.005 and OAR 407-045-0260.

(e) BEHAVIOR SUPPORT PLAN (BSP). For a child who has
demonstrated a serious threat to self, others, or property and for whom it has been
decided a BSP is needed, the BSP must be developed with the approval of the ISP
team.

(f) PROTECTIVE PHYSICAL INTERVENTION. A protective
physical intervention must be used only for health and safety reasons and under
the following conditions:

(A) As part of the child’s ISP team approved BSP.

(i) When protective physical intervention shall be
employed as part of the BSP, the foster provider and alternate caregivers must
complete OIS training prior to the implementation of the BSP.

(ii) The use of any modified OIS protective physical
intervention must have approval from the OIS Steering Committee in writing
prior to their implementation. Documentation of the approval must be maintained
in the child’s records.

(B) As in a health-related protection prescribed by a
physician or qualified health care provider, but only if absolutely necessary
during the conduct of a specific medical or surgical procedure, or only if
absolutely necessary for protection during the time that a medical condition
exists.

(C) As an emergency measure if absolutely necessary to
protect the child or others from immediate injury and only until the child is
no longer an immediate threat to self or others.

(g) MECHANICAL RESTRAINT.

(A) The foster provider may not use mechanical restraints
on a child in foster care other than car seat belts or normally acceptable
infant safety products unless ordered by a physician or health care provider
and with an agreement of the ISP team.

(B) The foster provider must maintain the original
order in the child’s records and forward a copy to the CDDP services
coordinator and guardian.

(h) DOCUMENTATION AND NOTIFICATION OF USE OF PROTECTIVE
PHYSICAL INTERVENTION.

(A) The foster provider must document the use of all
protective physical interventions or mechanical restraints in an incident
report. A copy of the incident report must be provided to the CDDP services
coordinator and guardian.

(B) If an approved protective physical intervention is
used, the foster provider must send a copy of the incident report within five
working days to the services coordinator and guardian.

(C) If an emergency or non ISP team approved protective
physical intervention is used, the foster provider must send a copy of the
incident report within 24 hours to the services coordinator and guardian. The
foster provider must make verbal notification to the CDDP services coordinator
and guardian no later than the next working day.

(D) The original incident report must be on file with
the foster provider in the child’s records.

(E) The incident report must include:

(i) The name of the child to whom the protective
physical intervention was applied;

(iii) The name of the provider and witnesses or persons
involved in applying the protective physical intervention;

(iv) The name and position of the person notified
regarding the use of the protective physical intervention; and

(v) A description of the incident, including precipitating
factors, preventive techniques applied, description of the environment,
description of any physical injury resulting from the incident, and follow-up
recommendations.

(8) MEDICAL AND DENTAL CARE. The foster provider must:

(a) Provide care and services, as appropriate to the
child’s chronological age, developmental level, and condition of the child, and
as identified in the ISP.

(b) Assure that physician or qualified health care
provider orders and those of other licensed medical professionals are implemented
as written.

(c) Inform the child’s physicians or qualified health
care providers of current medications and changes in health status and if the
child refuses care, treatments, or medications.

(d) Inform the guardian and CDDP services coordinator
of any changes in the child’s health status except as otherwise indicated in
the DHS-CW Permanent Foster Care contract agreement and as agreed upon in the
child’s ISP.

(e) Obtain the necessary medical, dental, therapies,
and other treatments of care including but not limited to:

(A) Making appointments;

(B) Arranging for or providing transportation to
appointments; and

(C) Obtaining emergency medical care.

(f) Have prior consent from the guardian for medical
treatment that is not routine, including surgery and anesthesia except in cases
where a DHS-CW Permanent Foster Care contract agreement exists.

(g) Keep current medical records. The records must
include, when applicable:

(A) Any history of physical, emotional, and medical
problems, illnesses, or mental health status;

(B) Current orders for all medications, treatments,
therapies, use of protective physical intervention, specialized diets, adaptive
equipment, and any known food or medication allergies;

(D) Pertinent medical and behavioral information such
as hospitalizations, accidents, immunization records including Hepatitis B
status and previous TB tests, and incidents or injuries affecting the health,
safety, or emotional well-being of the child;

(E) Documentation or other notations of guardian
consent for medical treatment that is not routine including surgery and
anesthesia;

(i) Provide copies, as applicable, of the medical
records described in section (8)(g)(H) above to the licensed medical professional
prior to the medical appointment or no later than the time of the appointment
with the licensed medical professional.

(a) There must be authorization by a physician or
qualified health care provider in the child’s file prior to the usage of or
implementation of any of the following:

(A) All prescription medications;

(B) Non prescription medications except over the
counter topicals;

(C) Treatments other than basic first aid;

(D) Therapies and use of mechanical restraint as a
health and safety related protection;

(E) Modified or specialized diets;

(F) Prescribed adaptive equipment; and

(G) Aids to physical functioning.

(b) The foster provider must have:

(A) A copy of an authorization in the format of a
written order signed by a physician or a qualified health care provider; or

(B) Documentation of a telephone order by a physician
or qualified health care provider with changes clearly documented on the MAR,
including the name of the person giving the order, the date and time, and the
name of the person receiving the telephone order; or

(C) A current pharmacist prescription or manufacturer’s
label as specified by the physician’s order on file with the pharmacy.

(c) A provider or alternate caregiver must carry out
orders as prescribed by a physician or a qualified health care provider.
Changes may not be made without a physician or a qualified health care
provider’s authorization.

(d) Each child’s medication, including refrigerated
medication, must be clearly labeled with the pharmacist’s label, or in the
manufacturer’s originally labeled container, and kept in a locked location, or
stored in a manner that prevents access by children.

(e) Unused, outdated, or recalled medications may not
be kept in the foster home and must be disposed of in a manner that shall
prevent illegal diversion into the possession of people other than for which it
was prescribed.

(f) The foster provider must keep a MAR for each child.
The MAR must be kept for all medications administered by the foster provider or
alternate caregiver to that child, including over the counter medications and
medications ordered by physicians or qualified health care providers and
administered as needed (PRN) for the child.

(g) The MAR must include:

(A) The name of the child in foster care;

(B) A transcription of the written physician’s or
licensed health practitioner’s order including the brand or generic name of the
medication, prescribed dosage, frequency, and method of administration;

(C) A transcription of the printed instructions from
the package for topical medications and treatments without a physician’s order;

(D) Times and dates of administration or
self-administration of the medication;

(E) Signature of the person administering the
medication or the person monitoring the self-administration of the medication;

(F) Method of administration;

(G) An explanation of why a PRN medication was
administered;

(H) Documented effectiveness of any PRN medication
administration;

(I) An explanation of all medication administration or
documentation irregularities; and

(J) Any known allergy or adverse drug reactions and
procedures that maintain and protect the physical health of the child placed in
the foster home.

(h) Any errors in the MAR must be corrected by circling
the error and then writing on the back of the MAR what the error was and why.

(i) Treatments, medication, therapies, and specialized
diets must be documented on the MAR when not used or applied according to the
order.

(j) SELF-ADMINISTRATION OF MEDICATION. For any child
who is self-administering medication, the foster provider must:

(A) Have documentation that a training program was
initiated with approval of the child’s ISP team or that training for the child
was unnecessary;

(B) Have a training program that provides for
retraining when there is a change in dosage, medication, and time of delivery;

(C) Provide for an annual review, at a minimum as part
of the ISP process, upon completion of the training program;

(D) Assure that the child is able to handle his or her
own medication regime;

(E) Keep medications stored in a locked area
inaccessible to others; and

(F) Maintain written documentation of all training in
the child’s medical record.

(k) The foster provider may not use alternative
medications intended to alter or affect mood or behavior, such as herbals or
homeopathic remedies, without direction and supervision of a licensed medical
professional.

(l) Any medication that is used with the intent to alter
behavior of a child with a developmental disability must be documented on the
ISP.

(m) BALANCING TEST. When a psychotropic medication is
first prescribed and annually thereafter, the foster provider must obtain a
signed balancing test from the prescribing health care provider using the
Division’s Balancing Test Form. Foster providers must present the physician or
health care provider with a full and clear description of the behavior and
symptoms to be addressed as well as any side effects observed.

(n) PRN prescribed psychotropic medication is
prohibited.

(o) A mental health assessment by a qualified mental
health professional or licensed medical professional must be completed, except
as noted in subsection (A) of this section, prior to the administration of a
new medication for more than one psychotropic or any antipsychotic medication
to a child in foster care.

(A) A mental health assessment is not required in the
following situations:

(i) In a case of urgent medical need;

(ii) For a substitution of a current medication within
the same class; or

(iii) A medication order given prior to a medical
procedure; or

(B) When a mental health assessment is required, the
foster provider:

(i) Must notify the DHS-CW caseworker when the child is
in legal custody of DHS-CW worker; or

(ii) Shall arrange for a mental health assessment when
the child is a voluntary care placement.

(C) The mental health assessment:

(i) Must have been completed within three months prior
to the prescription; or

(ii) May be an update of a prior mental health
assessment that focuses on a new or acute problem.

(D) Whenever possible, information from the mental
health assessment must be communicated to the licensed medical professional
prior to the issuance of a prescription for psychotropic medication.

(p) Within one business day after receiving a new
prescription or knowledge of a new prescription for psychotropic medication for
the child in foster care, the foster provider must notify:

(A) The child’s parent when the parent retains legal guardianship;

(B) The child’s family member or the person who has
legal guardianship; or

(C) DHS-CW when DHS-CW is the legal guardian of the
child; and

(D) The CDDP services coordinator.

(q) The notification from the foster provider to the
legal guardian and the CDDP services coordinator must contain:

(A) The name of the prescribing physician, or qualified
health care provider;

(B) The name of the medication;

(C) The dosage, any change of dosage or suspension, or
discontinuation of the current psychotropic medication;

(D) The dosage administration schedule prescribed; and

(E) The reason the medication was prescribed.

(r) The foster provider must get a written informed
consent prior to filling a prescription for any new psychotropic medication
except in a case of urgent medical need from DHS-CW when DHS-CW is the legal
guardian.

(s) The foster provider shall cooperate as requested,
when a review of psychotropic medications is indicated.

(10) DIRECT NURSING SERVICES.

(a) When direct nursing services are provided to a
child the foster provider must:

(A) Coordinate with the nurse and the ISP team to
ensure that the services being provided are sufficient to meet the child’s
health needs; and

(B) Implement the Nursing Care Plan, or appropriate
portions therein, as agreed upon by the ISP team and the registered nurse.

(b) When nursing tasks are delegated, they must be
delegated by a licensed registered nurse in accordance with OAR chapter 851,
division 047.

(11) CHILD RECORDS.

(a) GENERAL INFORMATION OR SUMMARY RECORD. The provider
must maintain a record for each child in the home. The record must include:

(A) The child’s name, date of entry into the foster
home, date of birth, gender, religious preference, and guardianship status;

(B) The names, addresses, and telephone numbers of the
child’s guardian, family, advocate, or other significant person;

(C) The name, address, and telephone number of the
child’s preferred primary health provider, designated back up health care
provider and clinic, dentist, preferred hospital, medical card number and any
private insurance information, and Oregon Health Plan choice;

(D) The name, address, and telephone number of the
child’s school program; and

(E) The name, address, and telephone number of the CDDP
services coordinator and representatives of other agencies providing services
to the child.

(b) EMERGENCY INFORMATION. The foster provider must
maintain emergency information for each child receiving foster care services in
the child foster home. The emergency information must be kept current and must
include:

(A) The child’s name;

(B) The child’s address and telephone number;

(C) The child’s physical description which may include
a picture and the date it was taken, and identification of:

(I) Mental health or behavioral diagnosis and the
behaviors displayed by the child; and

(II) Approaches to use when supporting the child to
minimize emotional and physical outbursts.

(x) Any court ordered or guardian authorized contacts
or limitations;

(xi) The child’s supervisions requirements and why; and

(xii) Any additional pertinent information the provider
has that may assist in the care and support of the child should a natural or
man-made disaster occur.

(c) EMERGENCY PLANNING. The foster provider must post
emergency telephone numbers in close proximity to all phones utilized by the
foster provider or substitute caregivers. The posted emergency telephone
numbers must include:

(A) Telephone numbers of the local fire, police
department, and ambulance service if not served by a 911 emergency services;
and

(B) The telephone number of any emergency physician and
additional persons to be contacted in the case of an emergency.

(d) WRITTEN EMERGENCY PLAN.

(A) Foster providers must develop, maintain, update,
and implement a written Emergency Plan for the protection of all children in
foster care in the event of an emergency or disaster. The Emergency Plan must:

(i) Be practiced at least annually. The Emergency Plan
practice may consist of a walk-through of the provider’s and alternative
caregiver’s responsibilities.

(ii) Consider the needs of the child and address all
natural and human-caused events identified as a significant risk for the home
such as a pandemic or an earthquake.

(iii) Include provisions and sufficient supplies, such
as sanitation and food supplies, to shelter in place, when unable to relocate,
for a minimum of three days under the following conditions:

(I) Extended utility outage;

(II) No running water;

(III) Inability to replace food supplies; and

(IV) Alternative caregiver is unable provide respite or
additional support and care.

(iv) Include provisions for evacuation and relocation
that identifies:

(I) The duties of the alternative caregivers during
evacuation, transporting, and housing of the child including instructions to
notify the child’s parent or legal guardian, the Division or designee, the CDDP
services coordinator, and DHS-CW as applicable, of the plan to evacuate or the
evacuation of the home as soon as the emergency or disaster reasonably allows;

(II) The method and source of transportation;

(III) Planned relocation sites that are reasonably
anticipated to meet the needs of the child;

(IV) A method that provides persons unknown to the
child the ability to identify each child by the child’s name, and to identify
the name of the child’s supporting provider; and

(V) A method for tracking and reporting to the Division
or the Division’s designee and the local CDDP, the physical location of each
child in foster care until a different entity resumes responsibility for the
child,

(v) Address the needs of the child including provisions
to provide:

(I) Immediate and continued access to medical
treatment, information necessary to obtain care, treatment, food, and fluids
for the child, during and after an evacuation and relocation;

(II) Continued access to life sustaining
pharmaceuticals, medical supplies, and equipment during and after an evacuation
and relocation;

(III) Behavior support needs anticipated during an
emergency; and

(IV) The supports needed to meet the life-sustaining
and safety needs of the child.

(B) The foster provider must provide and document all
training to alternative caregivers regarding their responsibilities for
implementing the emergency plan.

(C) The foster provider must re-evaluate and revise the
Emergency Plan at least annually or when there is a significant change in the
home.

(D) The foster provider must complete the Emergency
Plan Summary, on the form supplied by the Division, and must send it to the
Division annually and upon change of licensee or location of the child foster
home.

(e) INDIVIDUAL SUPPORT PLAN (ISP). Within 60 days of
placement, the child’s ISP must be prepared by the ISP team and, at a minimum,
updated annually.

(A) The foster provider must participate with the ISP
team in the development and implementation of the ISP to address each child’s
behavior, medical, social, financial, safety, and other support needs.

(B) Prior to or upon entry to or exit from the foster
home, the foster provider must participate in the development and
implementation of a Transition Plan for the child.

(i) The Transition Plan must include a summary of the
services necessary to facilitate the adjustment of the child to the foster home
or after care plan; and

(ii) Identify the supports necessary to ensure health,
safety, and any assessments and consultations needed for ISP development.

(f) FINANCIAL RECORDS.

(A) The foster provider must maintain a separate
financial record for each child. Errors must be corrected with a single strike
through and initialed by the person making the correction. The financial record
must include:

(i) The date, amount, and source of all income received
on behalf of the child;

(ii) The room and board fee that is paid to the
provider at the beginning of each month;

(iii) The date, amounts, and purpose of funds disbursed
on behalf of the child; and

(iv) The signature of the person making the entry.

(B) Any single transaction over $25 purchased with the
child’s personal funds, unless otherwise indicated in the child’s ISP, must be
documented including receipts in the child’s financial record.

(C) The child’s ISP team may address how the child’s
personal spending money shall be managed.

(D) If the child has a separate commercial bank
account, records from that account must be maintained with the financial
record.

(E) The child’s personal funds must be maintained in a
safe manner and separate from other members of the household funds.

(F) Misuse of funds may be cause for suspension,
revocation, or denial of renewal of the child foster home certificate.

(g) PERSONAL PROPERTY RECORD.

(A) The foster provider must maintain a written record
of each child’s property of monetary value of more than $25 or that has
significant personal value to the child, parent, or guardian, or as determined
by the ISP team. Errors must be corrected with a single strike through and
initialed by the person making the correction.

(B) Personal property records are not required for
children who have a court approved Permanent Foster Care contract agreement
unless requested by the child’s guardian.

(C) The personal property record must include:

(i) The description and identifying number, if any;

(ii) The date when the child brought in the personal
property or made a new purchase;

(iii) The date and reason for the removal from the
record; and

(iv) The signature of the person making the entry.

(h) EDUCATIONAL RECORDS. The foster provider must
maintain the following educational records when available:

(A) The child’s report cards;

(B) Any reports received from the teacher or the
school;

(C) Any evaluations received as a result of educational
testing or assessment; and

(D) Disciplinary reports regarding the child.

(i) Child records must be available to representatives
of the Division, the certifier, and DHS-CW conducting inspections or
investigations, as well as to the child, if appropriate, and the guardian, or
other legally authorized persons.

(j) Child records must be kept for a period of three
years. If a child moves or the foster home closes, copies of pertinent
information must be transferred to the child’s new home.

(a) The buildings and furnishings must be clean and in
good repair and grounds must be maintained.

(b) Walls, ceilings, windows, and floors must be of
such character to permit frequent washing, cleaning, or painting.

(c) There must be no accumulation of garbage, debris,
or rubbish.

(d) The home must have a safe, properly installed,
maintained, and operational heating system. Areas of the home used by the child
in foster care must be maintained at normal comfort range during the day and
during sleeping hours. During times of extreme summer heat, the provider must
make reasonable effort to make the child comfortable using available
ventilation, fans, or air-conditioning.

(2) EXTERIOR ENVIRONMENT.

(a) The premises must be free from objects, materials,
and conditions that constitute a danger to the occupants.

(b) Swimming pools, wading pools, ponds, hot tubs, and
trampolines must be maintained to assure safety, kept in clean condition,
equipped with sufficient safety barriers or devices to prevent injury, and used
by a child in foster care only under direct supervision by the provider or
approved alternate caregiver.

(c) The home must have a safe outdoor play area on the
property or within reasonable walking distance.

(3) INTERIOR ENVIRONMENT.

(a) KITCHEN.

(A) Equipment necessary for the safe preparation,
storage, serving, and cleanup of meals must be available and kept in working
and sanitary condition.

(B) Meals must be prepared in a safe and sanitary manner
that minimizes the possibility of food poisoning or food-borne illness.

(C) If the washer and dryer are located in the kitchen
or dining room area, soiled linens and clothing must be stored in containers in
an area separate from food and food storage prior to laundering.

(b) DINING AREA. The home must have a dining area so
the child in foster care may eat together with the foster family.

(c) LIVING OR FAMILY ROOM. The home must have
sufficient living or family room space that is furnished and accessible to all
members of the family including the child in foster care.

(d) BEDROOMS. Bedrooms used by the child in foster care
must:

(A) Have adequate space for the age, size, and specific
needs of each child;

(B) Be finished and attached to the house, have walls
or partitions of standard construction that go from floor to ceiling, and have
a door that opens directly to a hallway or common use room without passage
through another bedroom or common bathroom;

(C) Have windows that open and provide sufficient
natural light and ventilation with window coverings provided that take into
consideration the safety, care needs, and privacy of the child;

(D) Have no more than four children to a bedroom;

(E) Have safe, age appropriate furnishings that are in
good repair, provided for each child including:

(i) A bed or crib with a frame unless otherwise
documented by an ISP team decision, a clean comfortable mattress, and a water
proof mattress cover if the child is incontinent;

(ii) A private dresser or similar storage area for
personal belongings that is readily accessible to the child;

(iii) A closet or similar storage area for clothing
that is readily accessible to the child; and

(iv) An adequate supply of clean bed linens, blankets,
and pillows. Bed linens are to be properly fitting and provided for each
child’s bed.

(F) Be on the ground level for a child who is
non-ambulatory or has impaired mobility;

(G) Provide flexibility in the decoration for the
personal tastes and expressions of the child placed in the provider’s home;

(H) Be in close enough proximity to the provider to
alert the provider to nighttime needs or emergencies, or be equipped with a
working monitor;

(I) Have doors that do not lock;

(J) Have no three-tier bunk beds in bedrooms occupied
by a child in foster care; and

(K) Not be located on the third floor or higher from
the ground level.

(e) A child of the foster provider may not be required
to sleep in a room also used for another purpose in order to accommodate a
child in foster care.

(f) The foster provider may not permit the following
sleeping arrangements for a child placed in their home:

(A) Children of different sexes in the same room when
either child is over the age of five years of age; and

(B) Children over the age of 12 months sharing a room
with an adult.

(g) BATHROOMS.

(A) Must have tubs or showers, toilets, and sinks
operable and in good repair with hot and cold water.

(B) A sink must be located near each toilet.

(C) There must be at least one toilet, one sink, and
one tub or shower for each six household occupants including the provider and
family.

(D) Must have hot and cold water in sufficient supply
to meet the needs of the child for personal hygiene. Hot water temperature
sources for bathing and cleaning areas that are accessible by the child in
foster care may not exceed 120 degrees F.

(E) Must have grab bars and non-slip floor surfaces for
toilets, tubs, or showers for the child’s safety as necessary for the child’s
care needs.

(F) Must have barrier-free access to toilet and bathing
facilities with appropriate fixtures for a child who utilizes a wheel chair or
other mechanical equipment for ambulation. Barrier free must be appropriate for
the non-ambulatory child’s needs for maintaining good personal hygiene.

(G) The foster provider must provide each child with
the appropriate personal hygiene and grooming items that meet each child’s
specific needs and minimize the spread of communicable disease.

(H) Window coverings in bathrooms must take into
consideration the safety, care needs, and privacy of the child.

(4) GENERAL SAFETY.

(a) The foster provider must protect the child from
safety hazards.

(b) Stairways must be equipped with handrails.

(c) A functioning light must be provided in each room
and stairway.

(d) In homes with a child in foster care age three or
under, or a child with impaired mobility, the stairways must be protected with
a gate or door.

(e) Hot water heaters must be equipped with a safety
release valve and an overflow pipe that directs water to the floor or to
another approved location.

(f) Adequate safeguards must be taken to protect a
child who may be at risk for injury from electrical outlets, extension cords,
and heat-producing devices.

(g) The foster home must have operable phone service at
all times available to all persons in the foster home including when there are
power outages. The home must have emergency phone numbers readily accessible
and in close proximity to the phone.

(h) The foster provider must store all medications,
poisonous chemicals, and cleaning materials in a way that prevents access by a
child.

(i) The foster provider must restrict a child’s access
to potentially dangerous animals. Only domestic animals must be kept as pets.
Pets must be properly cared for and supervised.

(j) Sanitation for household pets and other domestic
animals must be adequate to prevent health hazards. Proof of rabies or other
vaccinations as required by local ordinances must be made available to the
Division upon request.

(k) The foster provider must take appropriate measures
to keep the house and premises free of rodents and insects.

(l) To protect the safety of a child in foster care,
the provider must store hunting equipment and weapons in a safe and secure
manner inaccessible to the child.

(m) The foster provider must have first aid supplies in
the home in a designated place easily accessible to adults.

(n) There must be emergency access to any room that has
a lock.

(o) An operable flashlight, at least one per floor,
must be readily available in case of emergency.

(p) House or mailbox numbers must be clearly visible
and easy to read for easy identification by emergency vehicles.

(q) Use of video monitors must only be used as
indicated in the ISP or Behavior Support Plan.

(5) FIRE SAFETY.

(a) Smoke detectors must be installed in accordance
with manufacturer’s instructions, equipped with a device that warns of low
battery, and maintained to function properly.

(A) Smoke detectors must be installed in each bedroom,
adjacent hallways leading to the bedrooms, common living areas, basements, and
at the top of every stairway in multi-story homes.

(B) Ceiling placement of smoke detectors is
recommended. If wall-mounted, the smoke detectors must be between 6” and 12”
from the ceiling and not within 12” of a corner.

(b) At least one fire extinguisher, minimally rated
2:A:10:B:C, must be visible and readily accessible on each floor, including
basements. A qualified professional who is well versed in fire extinguisher
maintenance must inspect every fire extinguisher at least once per year. All
recharging and hydrostatic testing must be completed by a qualified entity
properly trained and equipped for this purpose.

(c) Use of space heaters must be limited to only
electric space heaters equipped with tip-over protection. Space heaters must be
plugged directly into the wall. No extension cords must be used with such
heaters. No freestanding kerosene, propane, or liquid fuel space heaters must
be used in the foster home.

(d) An Emergency Evacuation Plan must be developed,
posted, and rehearsed at least once every 90 days with at least one drill
practice per year occurring during sleeping hours. Alternate caregivers and
other staff must be familiar with the emergency evacuation plan and a new child
placed in foster care must be familiar with the Emergency Evacuation Plan
within 24 hours. Fire drill records must be retained for one year.

(A) Fire drill evacuation rehearsal must document the
date, time for full evacuation, location of proposed fire, and names of all
persons participating in the evacuation rehearsal.

(B) The foster provider must be able to demonstrate the
ability to evacuate all children in foster care from the home within three
minutes.

(e) Foster homes must have two unrestricted exits in
case of fire. A sliding door or window that may be used to evacuate a child may
be considered a usable exit.

(f) Barred windows or doors used for possible exit in
case of fire must be fitted with operable quick release mechanisms.

(g) Every bedroom used by a child in foster care must
have at least one operable window, of a size that allows safe rescue, with safe
and direct exit to the ground, or a door for secondary means of escape or
rescue.

(h) All external and inside doors must have simple
hardware with an obvious method of operation that allows for safe evacuation
from the home. A home with a child that is known to leave their place of
residence without permission must have a functional and activated alarm system
to alert the foster provider.

(i) Fireplaces and wood stoves must include secure
barriers to keep a child safe from potential injury and away from exposed heat
sources.

(j) Solid or other fuel-burning appliances, stoves, or
fireplaces must be installed according to manufacturer’s specifications and
under permit, where applicable. All applicants applying for a new child foster
home certificate after July 1, 2007 must have at least one carbon monoxide
sensor installed in the home in accordance with manufactures instructions if
the home has solid or other fuel-burning appliances, stoves, or fireplaces. All
foster providers certified prior to July 1, 2007 and moving to a new location
that uses solid or other fuel-burning appliances, stoves, or fireplaces, must
install a carbon monoxide sensor in the home in accordance with manufactures
instructions prior to being certified at the new location.

(k) Chimneys must be inspected at the time of initial
certification and if necessary the chimney must be cleaned. Chimneys must be
inspected annually, unless the fireplace and or solid fuel-burning appliance
was not used through the certification period and may not be used in the
future. Required annual chimney inspections are to be made available to the
certifier during certification renewal processes.

(l) A signed statement by the foster provider and
certifier assuring that the fireplace and or solid fuel-burning appliance may
not be in use must be submitted to the Division with the renewal application if
a chimney inspection may not be completed.

(m) Flammable and combustible materials must be stored
away from any heat source.

(6) SANITATION AND HEALTH.

(a) A public water supply must be utilized if
available. If a non-municipal water source is used, it must be tested for
coliform bacteria by a certified agent yearly and records must be retained for
two years. Corrective action must be taken to ensure potability.

(b) All plumbing must be kept in good working order. If
a septic tank or other non-municipal sewage disposal system is used, it must be
in good working order.

(A) The foster provider may not provide tobacco
products in any form to a child under the age of 18 placed in their home.

(B) A child in foster care may not be exposed to second
hand smoke in the foster home or when being transported.

(7) TRANSPORTATION SAFETY.

(a) The foster provider must ensure that safe
transportation is available for children to access schools, recreation,
churches, scheduled medical care, community facilities, and urgent care.

(b) If there is not a licensed driver and vehicle at
all times there must be a plan for urgent and routine transportation.

(c) The foster provider must maintain all vehicles used
to transport a child in a safe operating condition and must ensure that a first
aid kit is in each vehicle.

(d) All motor vehicles owned by the foster provider and
used for transporting a child must be insured to include liability.

(e) Only licensed adult drivers must transport a child
in foster care in a motor vehicle. The motor vehicle must be insured to include
liability.

(f) When transporting a child in foster care, the
driver must ensure that the child uses seat belts or appropriate safety seats.
Car seats or seat belts must be used for transporting a child in accordance
with the Department of Transportation under ORS 815.055.

(1) INACTIVE REFERRAL STATUS. The Division may require
that a foster provider go on inactive referral status. Inactive referral status
is a period, not to exceed 24 months or beyond the duration of the foster
provider’s current certificate, when during that time no agency shall refer
additional children to the home and the provider may not accept additional
children. The foster provider may request to be placed on inactive referral
status. The certifier may recommend that the Division initiate inactive
referral status.

(a) The Division may place a foster provider on
inactive referral status for reasons including but not limited to the
following:

(A) The Division or DHS-CW is currently assessing an
allegation of abuse in the home.

(B) The special needs of the child currently in the
home require so much of the foster provider’s care and attention that
additional children may not be placed in the home.

(C) The foster provider has failed to meet
individualized training requirements or the Division has asked the foster
provider to obtain additional training to enhance his or her skill in caring
for the child placed in the home.

(D) The family or members of the household are
experiencing significant family or life stress or changes in physical or mental
health conditions that may be impairing their ability to provide care. Examples
include but are not limited to:

(i) Separation or divorce and relationship conflicts;

(ii) Marriage;

(iii) Death;

(iv) Birth of a child;

(v) Adoption;

(vi) Employment difficulties;

(vii) Relocation;

(viii) Law violation; or

(ix) Significant changes in the care needs of their own
family members (children or adults).

(b) The Division shall notify the foster provider
immediately upon placing them on inactive referral.

(c) Within 30 days of initiating inactive referral
status, the Division shall send a letter to the foster provider that confirms
the inactive status, states the reason for the status, and the length of
inactive referral status.

(d) When the foster provider initiates inactive
referral status, the inactive status ends at the request of the foster provider
and when the Division has determined the conditions that warranted the inactive
referral status have been resolved.

(A) There must be no conditions in the home that
compromise the safety of the child already placed in the home.

(B) If applicable, a mutually agreed upon plan must be
developed to address the issues prior to resuming active status.

(C) The foster provider must be in compliance with all
certification rules, including training requirements, prior to a return to
active status.

(2) DENIAL, SUSPENSION, REVOCATION, REFUSAL TO RENEW.

(a) The Division shall deny, suspend, revoke, or refuse
to renew a child foster care certificate where it finds there has been
substantial failure to comply with these rules.

(b) Failure to disclose requested information on the
application or providing falsified, incomplete, or incorrect information on the
application shall constitute grounds for denial or revocation of the
certificate.

(c) The Division shall deny, suspend, revoke, or refuse
to renew a certificate if the foster provider fails to submit a plan of
correction, implement a plan of correction, or comply with a final order of the
Division.

(d) Failure to comply with OAR 411-346-0200(5) may
constitute grounds for denial, revocation, or refusal to renew.

(e) The Division may deny, suspend, revoke, or refuse
to renew the child foster home certificate where imminent danger to health or
safety of a child exists, including any founded report or substantiated abuse.

(f) The Division shall deny, suspend, revoke, or refuse
to renew a certificate if the foster provider has been convicted of any crime
that would have resulted in an unacceptable criminal records check upon
certification.

(g) Suspension shall result in the removal of a child
placed in the foster home and no placements shall be made during the period of
suspension.

(h) The applicant or foster provider whose certificate
has been denied or revoked may not reapply for certification for five years
after the date of denial or revocation.

(i) The Division shall provide the applicant or the
foster provider a written notice of denial, suspension, or revocation that
states the reason for such action.

(j) Such revocation, suspension, or denial shall be
done in accordance with the rules of the Division and ORS chapter 183 that
govern contested cases.

Notes1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.